{ "id": 4155789, "name": "PENNY M. RUMPLE RICHARDSON, Employee, Plaintiff-Appellee v. MAXIM HEALTHCARE/ALLEGIS GROUP, Employer, and KEMPER INSURANCE COMPANY/AMERICAN PROTECTION INSURANCE c/o SPECIALTY RISK SERVICES, Carrier, Defendants-Appellants", "name_abbreviation": "Richardson v. Maxim Healthcare/Allegis Group", "decision_date": "2008-02-05", "docket_number": "No. COA06-875", "first_page": "337", "last_page": "365", "citations": [ { "type": "official", "cite": "188 N.C. App. 337" } ], "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": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "493", "parenthetical": "quoting N.C. Gen. 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"pin_cites": [ { "page": "446-47" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0440-01" ] }, { "cite": "644 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638309, 12638310, 12638311 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0231-01", "/se2d/644/0231-02", "/se2d/644/0231-03" ] }, { "cite": "628 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635582 ], "year": 2006, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0402-01" ] }, { "cite": "622 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634500, 12634501, 12634502 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0492-01", "/se2d/622/0492-02", "/se2d/622/0492-03" ] }, { "cite": "613 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633072 ], "year": 2005, "pin_cites": [ { "page": "719", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0715-01" ] }, { "cite": "627 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635369, 12635370, 12635371, 12635372 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0464-01", "/se2d/627/0464-02", "/se2d/627/0464-03", "/se2d/627/0464-04" ] }, { "cite": "360 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787745, 3791782, 3787977, 3793321, 3796109, 3789454, 3792409, 3797401, 3787263 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0288-09", "/nc/360/0288-04", "/nc/360/0288-07", "/nc/360/0288-05", "/nc/360/0288-03", "/nc/360/0288-01", "/nc/360/0288-08", "/nc/360/0288-02", "/nc/360/0288-06" ] }, { "cite": "616 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633569 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "412", "parenthetical": "internal quotation marks and alterations omitted" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0403-01" ] }, { "cite": "617 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633744, 12633741, 12633742, 12633743 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0662-04", "/se2d/617/0662-01", "/se2d/617/0662-02", "/se2d/617/0662-03" ] }, { "cite": "540 U.S. 971", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8979328, 8979037, 8979302, 8979015, 8979081, 8979056, 8979282, 8979188, 8979252, 8979225, 8979162, 8979100, 8979133 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0971-13", "/us/540/0971-02", "/us/540/0971-12", "/us/540/0971-01", "/us/540/0971-04", "/us/540/0971-03", "/us/540/0971-11", "/us/540/0971-08", "/us/540/0971-10", "/us/540/0971-09", "/us/540/0971-07", "/us/540/0971-05", "/us/540/0971-06" ] }, { "cite": "636 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637117 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/636/0805-01" ] }, { "cite": "360 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790274, 3793348, 3788187, 3787867, 3790623 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0646-03", "/nc/360/0646-05", "/nc/360/0646-01", "/nc/360/0646-02", "/nc/360/0646-04" ] }, { "cite": "634 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636583 ], "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0224-01" ] }, { "cite": "480 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "679", "parenthetical": "holding that damages awarded against a third party are to be reduced only \"by the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation\"" } ], "opinion_index": 0 }, { "cite": "345 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53997 ], "year": 1997, "pin_cites": [ { "page": "459", "parenthetical": "holding that damages awarded against a third party are to be reduced only \"by the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation\"" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0456-01" ] }, { "cite": "593 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "455", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917729 ], "year": 2004, "pin_cites": [ { "page": "353", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0350-01" ] }, { "cite": "488 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139489, 139429, 139631, 139376, 139666 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0556-02", "/nc/346/0556-05", "/nc/346/0556-01", "/nc/346/0556-03", "/nc/346/0556-04" ] }, { "cite": "483 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708561 ], "year": 1997, "pin_cites": [ { "page": "77-78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0074-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2001, "pin_cites": [ { "page": "(b)" }, { "page": "(h)", "parenthetical": "emphasis added" }, { "page": "(h)" }, { "page": "(j)" }, { "page": "(h)", "parenthetical": "providing that \"every party to the claim for compensation shall have a lien to the extent of his interest. . . upon any payment made by the third party\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Gallimore v. 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App.", "case_ids": [ 8236521 ], "year": 2006, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0365-01" ] }, { "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": "433-34", "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": "93 P.3d 420", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9223253 ], "year": 2004, "pin_cites": [ { "page": "424", "parenthetical": "injury to the employee's breast implant was presumptively compensable" } ], "opinion_index": 0, "case_paths": [ "/p3d/93/0420-01" ] }, { "cite": "34 P.3d 696", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 368755 ], "year": 2001, "pin_cites": [ { "parenthetical": "affirming an order of the Workers' Compensation Board that concluded that the employee had suffered a compensable injury when an on-the-job accident caused one of her saline breast implants to collapse" } ], "opinion_index": 0, "case_paths": [ "/or-app/177/0504-01" ] }, { "cite": "990 S.W.2d 522", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1240945 ], "year": 1999, "pin_cites": [ { "parenthetical": "finding that substantial evidence supported the Workers' Compensation Commission's decision that the employee suffered a compensable injury to her right breast implant in the course of her employment" } ], "opinion_index": 0, "case_paths": [ "/ark/337/0443-01" ] }, { "cite": "609 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "169 N.C. 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App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301096 ], "year": 2006, "pin_cites": [ { "page": "210-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0205-01" ] }, { "cite": "503 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "416-17", "parenthetical": "remanding the case to the Full Commission for specific findings on whether the employer was prejudiced pursuant to section 97-22" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468759 ], "year": 1998, "pin_cites": [ { "page": "527-29", "parenthetical": "remanding the case to the Full Commission for specific findings on whether the employer was prejudiced pursuant to section 97-22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0517-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "360 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792192 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0169-01" ] }, { "cite": "171 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "588 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "357 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491533 ], "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0068-01" ] }, { "cite": "571 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "226-27" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248791 ], "year": 2002, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0119-01" ] }, { "cite": "178 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379340 ], "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0635-01" ] }, { "cite": "622 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634555 ], "year": 2005, "pin_cites": [ { "page": "676", "parenthetical": "citing Anderson v. Northwestern Motor Co., 233 N.C. 372, 374, 64 S.E.2d 265, 267 (1951)" } ], "opinion_index": 1, "case_paths": [ "/se2d/622/0671-01" ] }, { "cite": "622 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634563 ], "year": 2005, "pin_cites": [ { "page": "712", "parenthetical": "emphasis added and quotation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/622/0710-01" ] }, { "cite": "627 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635369, 12635370, 12635371, 12635372 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/se2d/627/0464-01", "/se2d/627/0464-02", "/se2d/627/0464-03", "/se2d/627/0464-04" ] }, { "cite": "360 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787745, 3791782, 3787977, 3793321, 3796109, 3789454, 3792409, 3797401, 3787263 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/nc/360/0288-09", "/nc/360/0288-04", "/nc/360/0288-07", "/nc/360/0288-05", "/nc/360/0288-03", "/nc/360/0288-01", "/nc/360/0288-08", "/nc/360/0288-02", "/nc/360/0288-06" ] }, { "cite": "616 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633569 ], "year": 2005, "pin_cites": [ { "page": "413", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/616/0403-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 9740.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 }, { "cite": "352 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "694", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167998 ], "year": 1987, "pin_cites": [ { "page": "196", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0188-01" ] }, { "cite": "64 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "267" } ], "opinion_index": 1 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "pin_cites": [ { "page": "374" } ], "opinion_index": 1, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "175 N.C. App. 95", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350225 ], "year": 2005, "pin_cites": [ { "page": "101", "parenthetical": "citing Anderson v. Northwestern Motor Co., 233 N.C. 372, 374, 64 S.E.2d 265, 267 (1951)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0095-01" ] }, { "cite": "183 S.E. 266", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "page": "268", "parenthetical": "\"The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.\"" } ], "opinion_index": 1 }, { "cite": "209 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221590 ], "year": 1936, "pin_cites": [ { "page": "144", "parenthetical": "\"The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/209/0140-01" ] }, { "cite": "532 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "177-78", "parenthetical": "citing Bowen v. Fidelity Bank, 209 N.C. 140, 144, 183 S.E. 266, 268 (1936) (\"The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.\")" } ], "opinion_index": 1 }, { "cite": "352 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684978 ], "year": 2000, "pin_cites": [ { "page": "347", "parenthetical": "citing Bowen v. Fidelity Bank, 209 N.C. 140, 144, 183 S.E. 266, 268 (1936) (\"The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.\")" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0343-01" ] }, { "cite": "311 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2397935, 2404016, 2403513, 2393566, 2403935 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0154-03", "/nc/310/0154-01", "/nc/310/0154-02", "/nc/310/0154-05", "/nc/310/0154-04" ] }, { "cite": "306 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "526" } ], "opinion_index": 1 }, { "cite": "63 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525931 ], "year": 1983, "pin_cites": [ { "page": "615" } ], "opinion_index": 1, "case_paths": [ "/nc-app/63/0605-01" ] }, { "cite": "58 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "347" } ], "opinion_index": 1 }, { "cite": "231 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631109 ], "year": 1950, "pin_cites": [ { "page": "571" } ], "opinion_index": 1, "case_paths": [ "/nc/231/0566-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "175 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351270 ], "year": 2005, "pin_cites": [ { "page": "221", "parenthetical": "emphasis added and quotation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0219-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "opinion_index": 1 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 132234, 131930, 132199 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-03", "/nc/350/0108-04", "/nc/350/0108-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 1 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(j)" }, { "page": "(j)" } ], "opinion_index": 1 }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "emphasis added" }, { "page": "414" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "emphasis added" }, { "page": "681" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "381" } ], "opinion_index": 1 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "190" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 1 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 1, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "204", "parenthetical": "citation omitted" }, { "page": "204" }, { "page": "204" }, { "page": "203", "parenthetical": "emphasis added and quotation omitted" } ], "opinion_index": 1 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "481", "parenthetical": "citation omitted" }, { "page": "481" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "404 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "167" }, { "page": "167" } ], "opinion_index": 1 }, { "cite": "103 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519554 ], "year": 1991, "pin_cites": [ { "page": "76-77" } ], "opinion_index": 1, "case_paths": [ "/nc-app/103/0073-01" ] }, { "cite": "172 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320194 ], "year": 2005, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/172/0366-01" ] } ], "analysis": { "cardinality": 1908, "char_count": 69445, "ocr_confidence": 0.741, "pagerank": { "raw": 8.277990382600847e-08, "percentile": 0.4788715481095616 }, "sha256": "04794b80dd33e21c301b7e5167be5f08a1a390694de882119584c351bfbeab81", "simhash": "1:3d55416a147fc24e", "word_count": 11076 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN dissents in part and concurs in the results only in part in a separate opinion.", "Judge STEELMAN concurs." ], "parties": [ "PENNY M. RUMPLE RICHARDSON, Employee, Plaintiff-Appellee v. MAXIM HEALTHCARE/ALLEGIS GROUP, Employer, and KEMPER INSURANCE COMPANY/AMERICAN PROTECTION INSURANCE c/o SPECIALTY RISK SERVICES, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "JACKSON, Judge.\nMaxim Healthcare/Allegis Group (\u201cdefendant-employer\u201d) and its insurance carrier, Kemper Insurance Company/American Protection Insurance c/o Specialty Risk Services (collectively, \u201cdefendants\u201d), appeal from an order of the Full Commission of the North Carolina Industrial Commission (\u201cFull Commission\u201d) filed 15 March 2006 awarding workers\u2019 compensation benefits to Penny M. Rumple Richardson (\u201cplaintiff\u2019). For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings not inconsistent with this opinion.\nIn 1996, plaintiff began working for defendant-employer, a medical staffing agency with approximately 400 employees. As a certified nursing assistant, plaintiff worked either in a long-term care facility or in a client\u2019s home. Plaintiff\u2019s work duties varied with the particular assignment and \u201ccould be very strenuous to very light,\u201d with work ranging from total patient care to sitting with an elderly or disabled patient. Work assignments were made either when an employee contacted defendant-employer to see if work was available or when defendant-employer contacted an employee seeking to fill a particular assignment. Employees could turn down jobs, and many of defendant-employer\u2019s employees, including plaintiff, worked a sporadic schedule.\nOn 16 May 2001, plaintiff was assigned work assisting a paraplegic client with bathing, dressing, and general care. Plaintiff left the client\u2019s house to pick up food, and while traveling at approximately fifty-five miles per hour in the right-hand lane, another vehicle drifted out of the left-hand lane and struck plaintiff\u2019s vehicle. The impact caused plaintiff\u2019s vehicle to spin out of control and strike a cement median barrier. The vehicle\u2019s air bags did not deploy, and plaintiff hit her head and right knee on something in the car. The driver of the other vehicle did not stop. As a result of the accident, plaintiff immediately experienced swelling in her face and right knee. Plaintiff also sustained injuries to her chest as a result of the accident.\nEmergency Medical Services (\u201cEMS\u201d) arrived at the scene of the accident and noted that plaintiff complained of pain in the left side of her head. EMS also noted edema to the left side of plaintiff\u2019s upper lip. EMS transported plaintiff to Moses Cone Memorial Hospital, where she was treated for headache, difficulty breathing, contusions, swelling around her mouth and chin, and moderate pain and soreness around her head, face, and chest.\nAdditionally, plaintiff began experiencing a decrease in the size of her breast implants as well as a rippling of the breasts almost immediately after the motor vehicle accident. Plaintiff, who had obtained the implants approximately five years prior to the accident, reported her concerns to the physicians at the emergency room. The physicians performed a visual inspection but noted no asymmetry.\nWithin twenty to thirty minutes'after the accident, plaintiff called defendant-employer and reported the accident to her supervisor. Defendant-employer acknowledged that it first learned of the injury on 16 May 2001 \u2014 the date of the accident \u2014 on Industrial Commission Form 19, dated 9 August 2002. Also shortly after the accident, plaintiff filed uninsured motorists claims with Nationwide Insurance (\u201cNationwide\u201d) \u2014 the insurance carrier for plaintiffs motor vehicle\u2014 for the personal injuries she sustained as a result of the accident.\nOn 17 May 2001, plaintiff presented to her family physician at Eagle Family Medicine, complaining of significant soreness, particularly in her shoulders and upper back. The physical examination revealed tenderness and soft tissue swelling over plaintiffs left cheek as well as a contusion on the inside of her upper lip. Plaintiff was given a note that provided that she was not to return to work until 6 June 2001 due to medical reasons.\nOn 31 May 2001, plaintiff presented to Dr. David M. Bowers (\u201cDr. Bowers\u201d), a board certified specialist in plastic surgery, and expressed concerns \u201cthat there was a decrease in the size of the implants, fairly immediately [after the accident].\u201d Plaintiff also informed Dr. Bowers of \u201csome rippling in the implants\u201d and that she was \u201cno longer filling out the bras that she . . . bought post surgery.\u201d Dr. Bowers testified that plaintiffs right breast implant had ruptured, and the left breast implant, although it did not appear to have ruptured, exhibited signs of rippling. On 7 June 2001, Dr. Bowers performed bilateral breast re-augmentation \u2014 specifically, he removed the original implants and replaced them with new implants. Nationwide paid Dr. Bowers for his work, pursuant to plaintiffs claim with Nationwide. Following the surgery on 7 June 2001, Dr. Bowers restricted plaintiff from working until 24 July 2001.\nPlaintiff also sought treatment for her right knee. Prior to the accident, she had undergone two knee surgeries, after which plaintiff had been able to return to work without restrictions. Following the accident, plaintiff began experiencing pain and swelling in her right knee, and on 9 July 2001, she presented to Dr. Peter G. Dalldorf (\u201cDr. Dalldorf\u2019) for treatment. Dr. Dalldorf confirmed plaintiffs complaints and referred her to physical therapy. Plaintiff followed up with Dr. Dalldorf on 30 July 2001, complaining of \u201cintense pain since her accident\u201d in her right knee. As a result, Dr. Dalldorf injected plaintiffs right knee and restricted plaintiff from working from 9 July 2001 until 6 August 2001.\nPlaintiff returned to work on a regular basis on 7 August 2001, but ceased working on 6 October 2001 to have surgery on her right kn\u00e9e on 9 October 2001. Between October 2001 and May 2002, when plaintiff returned to Dr. Dalldorf, she was limited in her abilities to crawl, climb, or stoop as well as lift, position, and turn patients. Nevertheless, plaintiff regularly contacted defendant-employer requesting to be assigned to light-duty jobs that she was capable of performing. Plaintiff testified that defendant-employer rarely offered her modified work that she was physically capable of performing, and during this time, plaintiff worked a total of eight days, performing light-duty jobs as they became available and were offered to her. Defendant-employer used plaintiffs wages on nearly all of these days to pay her health insurance costs.\nOn 25 June 2002, Dr. Dalldorf performed a second post-accident surgery on plaintiffs right knee. Plaintiff has not worked since this surgery and has been under work restrictions from her physicians. On 8 October 2002, Dr. Dalldorf performed a third post-accident surgery on plaintiffs knee. Dr. Dalldorf testified that although plaintiff had chondromalacia patella prior to the motor vehicle accident, plaintiffs motor vehicle accident aggravated her preexisting condition, and she would not have needed the three surgeries but for the motor vehicle accident. Dr. Dalldorf further noted on 5 February 2003 that plaintiff would have trouble performing her regular job duties.\nPlaintiff also has experienced discomfort in her right hand since the accident. On 22 January 2003, plaintiff presented to Dr. Marshall C. Freeman (\u201cDr. Freeman\u201d), complaining that she had been experiencing bilateral hand numbness and tingling, especially on her right hand, since May 2001. Plaintiff also explained her hand condition to Dr. Dalldorf on 5 February 2003. Dr. Dalldorf reviewed the nerve conduction studies performed by Dr. Freeman, noted that the studies revealed a mild carpal tunnel syndrome on her right hand, and injected plaintiffs hand with Depo-Medrol. Plaintiff returned to Dr. Dalldorf on 26 February 2003, complaining of continued discomfort in her right hand. Having already prescribed a brace and injection for plaintiff, Dr. Dalldorf decided to refer plaintiff to Dr. Gary R. Kuzma (\u201cDr. Kuzma\u201d).\nOn 6 March 2003, plaintiff presented to Dr. Kuzma, who is board certified in orthopedics and hand surgery, complaining of numbness and tingling in her hand. Plaintiff also indicated that \u201c[s]he felt as though it was gradually getting worse.\u201d Plaintiff indicated to Dr. Kuzma that she had been experiencing pain since her motor vehicle accident. Dr. Kuzma diagnosed plaintiff with carpal tunnel syndrome as well as arthrosis in her right thumb. Dr. Kuzma recommended immobilizing plaintiffs thumb and wrist by placing her right hand in a splint. On 4 June 2003, Dr. Kuzma performed a carpal tunnel release on plaintiffs right hand. On 5 January 2004, Dr. Kuzma testified that plaintiff remained under his care and on one-handed work restrictions. He also opined that plaintiff may require additional surgery on her thumb in the future.\nSince her 16 May 2001 motor vehicle accident, plaintiff also has experienced daily and continuous headaches. Plaintiff complained of a headache at the time of the accident to EMS workers. Plaintiff first sought treatment for her headaches on 23 October 2002 when she visited Dr. Freeman. Dr. Freeman\u2019s initial examination revealed bilateral occipital nerve tenderness along with a decreased range of motion of plaintiff\u2019s cervical spine. Over the course of his care of plaintiff, Dr. Freeman diagnosed plaintiff with \u201ccervicogenic headache as well as occipital neuralgia as well as a previous comorbid condition of fibromyalgia and migraine headache without aura.\u201d Dr. Freeman prescribed a variety of medications and performed trigger point injections and occipital nerve blocks, but plaintiff exhibited no significant improvement. Dr. Freeman testified that further options existed for treating plaintiff\u2019s headaches, including additional trigger point injections, botulinum-toxin injections, and integrative therapies. Plaintiff did not follow up on the integrative therapies, which Dr. Freeman explained typically are not covered by insurance.\nFinally, plaintiff\u2019s injuries as a result of the motor vehicle accident included several dental injuries. Plaintiff initially presented to Dr. Dennis Torney (\u201cDr. Torney\u201d), a board certified endodontist, on 30 April 2002. Dr. Torney has performed root canals on several teeth on the left side of plaintiff\u2019s mouth, including multiple root canals on some of those teeth. Dr. Torney also has performed dental work and crowns on the teeth that underwent root canal therapy. These teeth all are on the left side of plaintiff\u2019s mouth \u2014 the side of her face impacted during the accident. Plaintiff has received treatment for teeth numbers 12, 13, 14, 15, 19, 23, and 24, although the Full Commission found that the repair to tooth number 19 was the re-suit of a previous inadequate root canal, as opposed to the motor vehicle accident.\nAfter receiving her final check from Nationwide, plaintiff filed for workers\u2019 compensation benefits on 24 June 2002. Defendants denied liability on 9 September 2002. On 30 October 2003, a hearing was held before Deputy Commissioner George T. Glenn II, and on 17 June 2004, Deputy Commissioner Glenn issued an Opinion and Award in favor of plaintiff. Defendants appealed to the Full Commission, which entered an Opinion and Award on 15 March 2006 affirming Deputy Commissioner Glenn\u2019s decision with modifications. Chairman Buck Lattimore filed a dissenting opinion. On 14 April 2006, defendants filed timely notice of appeal.\nOn appeal, defendants contend that: (1) the Full Commission erred in failing to properly address whether plaintiff timely reported her claim pursuant to North Carolina General Statutes, section 97-22 and whether the case should be barred for her failure to do so; (2) no competent evidence causally relates plaintiff\u2019s various alleged injuries to the accident; (3) the Full Commission failed to properly place the burden of proving disability on plaintiff and that plaintiff presented insufficient evidence of disability; and (4) the Full Commission erred in failing to award defendants a lien on all amounts accepted by plaintiff in her third-party settlement in contravention of North Carolina General Statutes, section 97-10.2.\nAs a preliminary matter, we note that defendants\u2019 third assignment of error in the record on appeal violates the North Carolina Rules of Appellate Procedure. Pursuant to Rule 10(c),\n[e]ach assignment of error shall . . . state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\nN.C. R. App. P. 10(c)(1) (2006). In their third assignment of error, defendants contend: \u201cThe Full Commission erred in omitting relevant stipulated documents from the transcript of the evidence prepared by the Industrial Commission.\u201d The assignment of error does not indicate to which documents defendants are referring, and this Court has held that \u201c[assignments of error which are \u2018broad, vague, and unspecific ... do not comply with the North Carolina Rules of Appellate Procedure.\u2019 \u201d Hedingham Cmty. Ass\u2019n v. GLH Builders, Inc., 178 N.C. App. 635, 641, 634 S.E.2d 224, 228 (quoting In re Lane Company-Hickory Chair Div., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002)), disc. rev. denied, 360 N.C. 646, 636 S.E.2d 805 (2006). Additionally, assignments of error are required to include \u201cclear and specific record or transcript references,\u201d N.C. R. App. P. 10(c)(1) (2006) (emphasis added), but defendants\u2019 third \u00e1ssignment of error makes only the blanket reference to \u201cTranscripts Volumes I and II.\u201d See State v. Walters, 357 N.C. 68, 95, 588 S.E.2d 344, 360 (\u201cDefendant identifies the \u2018Entire Transcript\u2019 as the basis for the assignment of error alleging ineffective assistance of counsel, as contained in the record on appeal. As there are 3,285 transcript pages in this case, a reference to the entire transcript is not a reference to a \u2018particular error\u2019, nor is it \u2018clear and specific.\u2019 \u201d), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). In effect, defendants\u2019 third assignment of error fails to specify which documents should have been included in the transcripts and fails to provide specific record or transcript references. \u201cIt is not the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (per curiam), reh\u2019g denied, 359 N.C. 643, 617 S.E.2d 662 (2005). Accordingly, defendants\u2019 third assignment of error is dismissed.\nIn their first argument, defendants contend that the Full Commission erred in failing to properly address whether plaintiff timely reported her claim pursuant to North Carolina General Statutes, section 97-22 and whether the case should be barred for her failure to do so. We agree.\nNorth Carolina General Statutes, section 97-22 provides that an injured employee must give written notice to his employer \u201cimmediately on the occurrence of an accident, or as soon thereafter as practicable . . .; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident . . . .\u201d N.C. Gen. Stat. \u00a7 97-22 (2001). In the instant case, it is undisputed that plaintiff did not provide written notice of the accident until she filed her workers\u2019 compensation claim on 24 June 2002, over one year after her accident on 16 May 2001.\nAn employee is excused from the thirty-day notice requirement, however, if the employee has a \u201creasonable excuse ... for not giving such notice and . . . the employer has not been prejudiced thereby.\u201d Id. As this Court recently noted,\nincluded on the list of reasonable excuses would be, for example, a belief that one\u2019s employer is already cognizant of the accident or where the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows.\nChavis v. TLC Home Health Care, 172 N.C. App. 366, 377, 616 S.E.2d 403, 412 (2005) (internal quotation marks and alterations omitted) (quoting Jones v. Lowe\u2019s Cos., Inc., 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991)), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). \u201cThe burden is on the employee to show a \u2018reasonable excuse.\u2019 \u201d Id. (citing Jones, 103 N.C. App. at 75, 404 S.E.2d at 166).\nHere, plaintiff telephoned her supervisor within thirty minutes after the accident and reported the motor vehicle accident to him. Indeed, defendants concede that they had actual knowledge of the accident on the day it happened. Although the evidence demonstrates and the Full Commission found that defendant had actual knowledge of plaintiff\u2019s accident, the Full Commission failed to make any finding that plaintiff provided a reasonable excuse for her failure to timely provide written notice of her accident. As this Court has noted, \u201c[w]hile the Industrial Commission is not required to make specific findings of fact on every issue raised by the evidence, it is required to make findings on crucial facts upon which the right to compensation depends.\u201d Watts v. Borg Warner Auto., Inc., 171 N.C. App. 1, 5, 613 S.E.2d 715, 719, aff\u2019d, 360 N.C. 169, 622 S.E.2d 492 (2005) (per curiam). The determination whether or not there is a \u201creasonable excuse\u201d for plaintiff\u2019s failure to file in writing is crucial. Although \u201c[a]dual notice by the employer has been previously held by this Court to be a reasonable excuse for not giving written notice within thirty days,\u201d Chavis, 172 N.C. App. at 378, 616 S.E.2d at 413, we must remand this case to the Full Commission for specific findings with respect to whether plaintiff satisfied her burden of providing a reasonable excuse for not providing defendant-employer with written notice of her accident within thirty days of its occurrence.\nAdditionally, the inquiry pursuant to section 97-22 does not conclude with a finding of \u201creasonable excuse.\u201d \u201cSection 97-22 . . . also requires that the [F]ull Commission be satisfied that the employer has not been prejudiced by the delay in written notification^] . . . [and] [t]he burden is on the employer to show prejudice.\u201d Id.\nHere, the Full Commission found that \u201c[i]n light of... defendants\u2019 actual notice of . . . plaintiff\u2019s accident in May 2001, . . . defendants were not prejudiced by her failure to immediately file a written notice.\u201d However, the mere existence of actual notice, without more, cannot satisfy the statutorily required finding with respect to \u201cprejudice,\u201d as the issue of \u201cprejudice\u201d pursuant to section 97-22 must be evaluated in relation to the purpose of the notice requirement:\nThe purpose of the notice-of-injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and it facilitates the earliest possible investigation of the circumstances surrounding the injury.\nBooker v. Duke Med. Ctr., 297 N.C. 458, 481, 256 S.E.2d 189, 204 (1979); see also Jones, 103 N.C. App. at 76-77, 404 S.E.2d at 167. Accordingly, we remand this case for adequate findings of fact with respect to the issue of prejudice to defendant-employer pursuant to section 97-22. See Westbrooks v. Bowes, 130 N.C. App. 517, 527-29, 503 S.E.2d 409, 416-17 (1998) (remanding the case to the Full Commission for specific findings on whether the employer was prejudiced pursuant to section 97-22).\nNext, defendants contend that no competent evidence causally relates plaintiffs various injuries to her motor vehicle accident of 16 May 2001. We agree in part and disagree in part.\nWhen reviewing decisions of the North Carolina Industrial Commission, this Court must determine whether there is competent evidence in the record to support the Commission\u2019s findings of fact and whether those findings, in turn, justify the Commission\u2019s conclusions of law. See Perkins v. U.S. Airways, 177 N.C. App. 205, 210-11, 628 S.E.2d 402, 406 (2006), disc. rev. denied, 361 N.C. 356, 644 S.E.2d 231 (2007). With respect to causation, it is well-established that\n[e]xpert testimony that a work-related injury \u2018could\u2019 or \u2018might\u2019 have caused further injury is insufficient to prove causation when other evidence shows the testimony to be \u2018a guess or mere speculation.\u2019 However, when expert testimony establishes that a work-related injury \u2018likely\u2019 caused further injury, competent evidence exists to support a finding of causation.\nCannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264, 614 S.E.2d 440, 446-47 (citations omitted), disc. rev. denied, 360 N.C. 61, 621 S.E.2d 177 (2005).\nIn the instant case, plaintiff sought workers\u2019 compensation benefits for: (1) the replacement of her breast implants, (2) treatment for headaches, (3) treatment for carpal tunnel syndrome and arthrosis in her right wrist and thumb, (4) treatment for and surgeries to her right knee, and (5) treatments and procedures performed on her teeth. We address each injury separately in the above listed order.\nPursuant to our Workers\u2019 Compensation Act, \u201c[ijnjury shall include breakage or damage to eyeglasses, hearing aids, dentures, or other prosthetic devices which function as part of the body.\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2001). Although this Court has not addressed the issue of compensability of damage to breast implants, we have affirmed workers\u2019 compensation awards for cosmetic surgery. See, e.g., Ray v. Pet Parlor, 169 N.C. App. 236, 609 S.E.2d 256 (2005). We believe that the weight of authority supports a determination that breast implants satisfy the statutory requirement as a compensable prosthetic device that functions as part of the body. See N.C. Gen. Stat. \u00a7 97-2(6) (2001); see, e.g., Wal-Mart Stores, Inc. v. VanWagner, 990 S.W.2d 522 (Ark. 1999) (finding that substantial evidence supported the Workers\u2019 Compensation Commission\u2019s decision that the employee suffered a compensable injury to her right breast implant in the course of her employment); In re Smith, 34 P.3d 696 (Or. Ct. App. 2001) (affirming an order of the Workers\u2019 Compensation Board that concluded that the employee had suffered a compensable injury when an on-the-job accident caused one of her saline breast implants to collapse); see also Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004) (injury to the employee\u2019s breast implant was presumptively compensable).\nFollowing her motor vehicle accident on 16 May 2001, plaintiff noted that her right breast was smaller than it had been prior to the accident. Plaintiff also noted rippling in her left breast. On 31 May 2001, plaintiff presented to Dr. Bowers, a board certified specialist in plastic surgery, and expressed concerns that her breast implants had ruptured. Subsequently, on 7 June 2001, Dr. Bowers removed and replaced plaintiff\u2019s original breast implants.\nDuring his deposition, Dr. Bowers was presented with a hypothetical scenario that echoed plaintiff\u2019s description of the accident and her injuries. In response, Dr. Bowers opined \u201cthat the accident more than likely caused the leak\u201d in the right breast implant and that even if the accident did not directly cause the leak, the trauma \u201cmost definitely\u201d could have accelerated or aggravated such a leak. Dr. Bowers, however, noted that the left breast implant had not ruptured, and he could not state with any certainty that the rippling evident in the left breast was a result of the motor vehicle accident, as opposed to an underfilling of the implant.\n[DEFENSE COUNSEL]: And so am I also correct that we must come to the conclusion, then, that the rippling [in the left breast] was due to underinflation, or underfilling?\n[DR. BOWERS]: Right.\n[DEFENSE COUNSEL]: Okay. So as far as the left one, your\u2014 would it be your opinion that the left one was not ruptured by this accident? It wasn\u2019t ruptured at all, correct?\n[DR. BOWERS]: It wasn\u2019t \u2014 it did not appear to me that it was ruptured at all.\n[DEFENSE COUNSEL]: Okay. And I take it that you cannot state more than 50 percent that the rippling was due to the accident as opposed to due to underfilling?\n[DR. BOWERS]: Right. That\u2019s correct.\n(Emphasis added). Notwithstanding the Full Commission\u2019s finding that \u201c[t]he damage to plaintiff\u2019s breast implants were [sic] caused or aggravated by the accident\u201d (emphasis added), Dr. Bowers consistently distinguished between the two breast implants.\n[PLAINTIFF\u2019S COUNSEL]: Okay. And now let me go back and review your testimony regarding the left versus the right breast. And I guess what I\u2019m trying to figure out is, are you giving two different opinions, left versus right, or is your opinion the same for both the left and right concerning whether the trauma either caused or aggravated\u2014\n[DR. BOWERS]: Well, after \u2014 after the surgery I think the left\u2014 the left implant was not affected by the \u2014 by the injury because the left implant, I didn\u2019t see any evidence of a leak in it. The right implant, I think, is the one where I think it potentially was damaged by the \u2014 by the accident. Or there was some sort of damage to the right impact [sic] such that it had been affected in a way that the left implant had not been. And I think what I was seeing with the left implant was simply that there was just less saline than the 475 cc\u2019s.\n(Emphasis added).\nThe Full Commission found that replacement of the left breast implant was necessary \u201cbecause the replacements would have to be symmetrical and evenly matched. Replacement of one implant required replacement of both.\u201d Dr. Bowers, however, never testified to this effect. Instead, he stated unequivocally that the rippling in the left breast most likely was due to the original implant\u2019s being underfilled and that the rippling was not caused or aggravated by the accident. Accordingly, we hold that the Full Commission correctly ruled with respect to the replacement of plaintiff\u2019s right breast implant, but erred in concluding that \u201cplaintiff sustained compensable injuries to her .. . bilateral breast implants.\u201d (Emphasis added). Therefore, plaintiff is entitled only to compensation for replacement of the right breast implant, and we remand to the Full Commission for a determination as to the appropriate amount of compensation for such replacement.\nWe next review the Full Commission\u2019s ruling that plaintiff was entitled to workers\u2019 compensation benefits for her headaches. During her motor vehicle accident, plaintiff sustained an impact to her head, as evidenced in the EMS report as well as the emergency room records. Dr. Freeman, plaintiff\u2019s treating physician for her headaches, testified as to the cause of plaintiff\u2019s headaches. Defendants assert on appeal that \u201cDr. Freeman\u2019s opinions changed throughout the deposition\u201d and that \u201c[h]is opinions are indecisive at best.\u201d We disagree.\nTo the extent defendants contend Dr. Freeman was not a credible witness, we decline to rule on that issue. See Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 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). Furthermore, defendants misconstrue Dr. Freeman\u2019s testimony, which appears consistent with respect to plaintiff\u2019s headaches. During his deposition, Dr. Freeman opined:\nIt would be my opinion that this person, who did not previously suffer from daily head or neck pain prior to the accident, did suffer the chronic daily head and neck pain as reported to me as a consequence of the motor vehicle accident.\nDr. Freeman clarified that plaintiff\u2019s fibromyalgia diagnosis did not alter his conclusion, stating \u201cthat without a history of documented fibromyalgia, the accident caused the pain the patient states,\u201d and \u201c[i]f she had fibromyalgia previously, then . . . the accident exacerbated an underlying condition.\u201d Dr. Freeman explained that the only way he would be unable to state with any certainty that the accident caused the headaches or aggravated an underlying condition would be \u201c[i]f the patient had an extended period of pain-free, say, beginning a week or two after the initial injury.\u201d However, Dr. Freeman testified that \u201c[f]rom the very beginning the patient has stated she\u2019s experienced a daily headache since the time of her accident.\u201d Accordingly, the Full Commission did not err in accepting Dr. Freeman\u2019s testimony and ruling that plaintiff\u2019s headaches constituted a compensable injury.\nNext, plaintiff sought and obtained compensation for treatment for carpal tunnel syndrome in her right wrist and arthrosis in her right thumb. Once again, defendants effectively request this Court to reweigh the evidence presented before the Full Commission. However, \u201c[t]his Court does not re-weigh evidence or assess credibility of witnesses.\u201d Sharpe v. Rex Healthcare, 179 N.C. App. 365, 370, 633 S.E.2d 702, 705 (2006).\nDr. Dalldorf testified that plaintiff\u2019s right wrist and thumb pain was not related to the motor vehicle accident. Dr. Dalldorf further explained that he was \u201cnot even convinced she had carpal tunnel syndrome.\u201d Defendants contend that the Full Commission improperly disregarded this testimony in favor of that of Dr. Kuzma. Dr. Kuzma opined that plaintiff\u2019s motor vehicle accident, as described to him in a hypothetical question during his deposition, either caused or at least aggravated or accelerated plaintiff\u2019s carpal tunnel syndrome and arthrosis. Although plaintiff did not seek treatment for carpal tunnel syndrome symptoms for more than a year after the accident, Dr. Kuzma explained that \u201c[m]ost carpel tunnel syndromes are going to take a period of time to develop.... Depending, again, on the trauma, the direction of trauma, it may take a longer period of time for it to actually show up.\u201d As this Court has held, \u201c[t]he Commission may weigh the evidence and believe all, none or some of the evidence.\u201d Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272, disc. rev. denied, 355 N.C. 211, 558 S.E.2d 868 (2001). It is' not for this Court to evaluate the comparative weight of Dr. Dalldorf\u2019s and Dr. Kuzma\u2019s testimony. Competent evidence supports the Full Commission\u2019s finding that the treatment for plaintiff\u2019s right hand and wrist was the result of her motor vehicle accident, and accordingly, this portion of defendants\u2019 assignment of error is overruled.\nDefendants also contest the Full Commission\u2019s findings and conclusions with respect to plaintiff\u2019s right knee. Defendants note that plaintiff did not report complaints of knee pain in the first several weeks following the accident. Defendants further argue that \u201cDr. Dalldorf\u2019s theories as to causation stemmed from his hypothesis that plaintiffs knee hit the dashboard during the accident \u2014 -a fact unsubstantiated by competent evidence.\u201d\nPlaintiff testified that she felt her knee \u201chit something because it was \u2014 it had started swelling.\u201d Plaintiff also testified that her knee began swelling within a couple of hours after the accident. Defendants cross-examined plaintiff about, inter alia, her knee and her failure to report it to physicians at the emergency room. As there is nothing in the record to indicate that plaintiff\u2019s deposition testimony was incompetent and defendants have presented no argument to this effect, we agree that the basis for Dr. Dalldorf\u2019s theories as to causation was supported by competent evidence, as opposed to mere speculation or conjecture. See Hatcher v. Daniel Int\u2019l Corp., 153 N.C. App. 776, 780, 571 S.E.2d 20, 23 (2002).\nDr. Dalldorf testified that although plaintiff had chondromalacia patella prior to the motor vehicle accident, plaintiff\u2019s motor vehicle accident aggravated her pre-existing condition, and she would not have needed the three surgeries but for the motor vehicle accident. Specifically, Dr. Dalldorf testified, \u201c[M]y opinion is that if she hadn\u2019t been in the accident, she wouldn\u2019t have needed the subsequent surgeries. So I feel that the accident caused her to need these additional operations.\u201d Accordingly, we hold that the Full Commission did not err in finding plaintiff\u2019s right knee injuries and surgeries to be compensable under our Workers\u2019 Compensation Act.\nDefendants next contend that the Full Commission\u2019s Finding of Fact number 24 \u2014 relating to the compensability of treatment performed on plaintiff\u2019s teeth \u2014 was not supported by competent evidence. Defendants list this assignment of error as one of seventeen assignments of error supporting the second question presented in their brief. However, defendants make no argument in their brief relating to this assignment of error or the Full Commission\u2019s findings with respect to plaintiff\u2019s teeth. \u201cAssignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C. R. App. P 28(b)(6) (2006).\nIn their next argument, defendants contend that the Full Commission erred in concluding that plaintiff carried her burden of proving disability. We disagree.\n\u201c \u2018Disability,\u2019 within the North Carolina Workers\u2019 Compensation Act, \u2018means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u2019 \u201d Clark v. Wal-Mart, 360 N.C. 41,43, 619 S.E.2d 491, 493 (2005) (quoting N.C. Gen. Stat. \u00a7 97-2(9)). The burden of proving the existence and extent of a disability lies with the employee seeking compensation. See id. (citing Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). In order for a plaintiff to establish a claim for either temporary or permanent disability under the Workers\u2019 Compensation Act,\nthe Commission must find: (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). This Court has explained that\n[t]he employee may meet this burden in one of four ways: (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.'\nRussell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).\nIn the case sub judice, the Full Commission properly found that plaintiff satisfied her burden of proving her disability as a result of her work-related injuries. Plaintiff\u2019s motor vehicle accident occurred on 16 May 2001, and plaintiff\u2019s family physician wrote her out of work from 17 May 2001 to 6 June 2001. Dr. Bowers, plaintiff\u2019s breast implant surgeon, wrote plaintiff out of work from 7 June 2001 to 24 July 2001. After injecting plaintiff's right knee, Dr. Dalldorf restricted plaintiff from working from 9 July 2001 through 6 August 2001. Plaintiff attempted to return to work on 7 August 2001, but became disabled once again after knee surgery on 9 October 2001. After this first knee surgery, plaintiff worked one day in October 2001, four days in November 2001, one day in January 2002, and two days in February 2002. Plaintiff did not earn wages from this work, however, as defendants used plaintiffs wages to pay her health insurance premiums. Plaintiff worked and earned wages on two occasions in June 2002 prior to her final period of ongoing disability, which began on 25 June 2002 with a second knee surgery and continued until the hearing on this matter in October 2003. However, plaintiff was able to work these two days only because \u201csitter jobs\u201d were available and offered to her. Other than these two days, defendant-employer did not make such light-duty work available to plaintiff. Following plaintiffs June 2002 knee surgery, Dr. Dalldorf explained that plaintiff would have had difficulty performing her regular job until at least February 2003. By March 2003, however, plaintiff was placed on one-handed work restrictions by Dr. Kuzma for her carpal tunnel syndrome and arthrosis, with such restrictions scheduled to continue until Dr. Kuzma\u2019s deposition in January 2004.\nPlaintiff satisfied her initial burden of proving disability under the Workers\u2019 Compensation Act. Although plaintiff returned to work on a few occasions during the time period at issue, such intermittent and infrequent work days do not constitute a successful trial return to work. Pursuant to North Carolina General Statutes, section 97-32.1,\nan employee may attempt a trial return to work for a period not to exceed nine months. During a trial return to work period, the employee shall be paid any compensation which may be owed for partial disability pursuant to [section] 97-30. If the trial return to work is unsuccessful, the employee\u2019s right to continuing compensation under [section] 97-29 shall be unimpaired unless terminated or suspended thereafter pursuant to the provisions of this Article.\nN.C. Gen. Stat. \u00a7 97-32.1 (2001) (emphasis added).\nAs plaintiff carried her burden of proving disability, the burden then shifted to defendants to disprove her claim. Our Supreme Court has explained that\n[i]f an injured employee establishes a compensable injury, the burden shifts to the employer to rebut the employee\u2019s evidence. As to the injured employee\u2019s ability to work, this burden requires the employer to come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\nJohnson v. S. Tire Sales & Serv., 358 N.C. 701, 708, 599 S.E.2d 508, 513 (2004) (internal quotation marks and citations omitted).\nIn the instant case, the Full Commission found that between October 2001 and May 2002, plaintiff testified that she regularly contacted defendant-employer seeking light-duty work, but defendant-employer rarely offered her the modified work that she was physically capable of performing based upon her restrictions. The Full Commission also found that while the accounts manager for defendant-employer testified that plaintiff had been offered light-duty assignments, the accounts manager did not know the dates or nature of such job offers, and he admitted that defendant-employer did not keep records of such offers. Because of his lack of personal knowledge, his testimony was found not to be credible. As \u201c \u2018findings of fact by the Industrial Commission are conclusive on appeal if .supported by any competent evidence,\u2019 \u2019\u2019Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)), we hold that defendants failed to carry their burden of proving that plaintiff was capable of obtaining suitable employment. Defendants, therefore, failed to rebut the ongoing presumption of disability, and accordingly, this assignment of error is overruled.\nIn their final argument, defendants contend that the Full Commission erred in failing to award defendants a lien on all amounts accepted by plaintiff in her third-party settlement with Nationwide. We agree.\nAs provided in section 97-10.2(b), an injured employee has the exclusive right to enforce the liability of a third party within the first twelve months following the injury. See N.C. Gen. Stat. \u00a7 97-10.2(b) (2001). Pursuant to subsection (h), \u201c[i]n any proceeding against or settlement with the third party, every party to the claim for compensation shall have a lien to the extent of his interest... upon any payment made by the third party by reason of such injury or death.\u201d N.C. Gen. Stat. \u00a7 97-10.2(h) (2001) (emphasis added). Although this subsection provides that an \u201cemployee . . . shall [not] make any settlement with or accept any payment from the third party without the written consent of the [employer],\u201d the statute further provides that employer consent to a third-party settlement is not required \u201c[i]f either party follows the provisions of subsection (j) of this section.\u201d N.C. Gen. Stat. \u00a7 97-10.2(h) (2001). Pursuant to subsection (j),\n[notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose, where the injured employee resides or the presiding judge before whom the cause of action is pending, to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard by all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien, whether based on accrued or prospective workers\u2019 compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer.\nN.C. Gen. Stat. \u00a7 97-10.2(j) (2001). Therefore, either party may apply to the superior court for a determination of the subrogation amount, regardless of whether both parties consented to the third-party settlement. Although \u201ccognizant of the potential for plaintiff to receive a double recovery via the operation of [section] 97-10.2(j)[,] . . . we [previously have] determined that the statute contemplated and allowed for such a recovery if justified by the equities of the case.\u201d Wiggins v. Bushranger Fence Co., 126 N.C. App. 74, 77-78, 483 S.E.2d 450, 452, disc. rev. denied, 346 N.C. 556, 488 S.E.2d 825 (1997).\nIn the case sub judice, following her 16 May 2001 motor vehicle accident, plaintiff filed a claim against Nationwide, the carrier of the uninsured motorist coverage of the vehicle she had been driving. As the Full Commission properly found, \u201cthe settled claim filed by . . . plaintiff against Nationwide is, in fact, a third-party claim.\u201d The Full Commission, however, concluded that \u201cdefendants shall be entitled to a credit, if any, as duly awarded by a superior court pursuant to [North Carolina General Statutes, section] 97-10.2.\u201d (Emphasis added).\nContrary to the Full Commission\u2019s conclusion, defendants\u2019 credit does not depend upon an award by the superior court, since section 97-10.2(h) clarifies that the lien is automatic. See N.C. Gen. Stat. \u00a7 97-10.2(h) (2001) (providing that \u201cevery party to the claim for compensation shall have a lien to the extent of his interest. . . upon any payment made by the third party\u201d (emphasis added)). Instead, plaintiff may apply to the superior court for a .determination of the lien amount pursuant to section 97-10.2(j), which this Court has described \u201cas permitting the superior court to adjust the amount of a subrogation lien.\u201d Ales v. T.A. Loving Co., 163 N.C. App. 350, 353, 593 S.E.2d 453, 455 (2004) (emphasis added). Unless and until plaintiff applies to the superior court for a determination of the subrogation amount, defendants are entitled to a lien on all corresponding uninsured motorist benefits received by plaintiff, less the portion expended for the cost of replacing plaintiffs left breast implant. See Tise v. Yates Constr. Co., Inc., 345 N.C. 456, 459, 480 S.E.2d 677, 679 (1997) (holding that damages awarded against a third party are to be reduced only \u201cby the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation\u201d). Accordingly, we reverse this portion of the Full Commission\u2019s Opinion and Award and remand to the Full Commission for findings not inconsistent with this opinion.\nAffirmed in part; Reversed in part; and Remanded.\nJudge WYNN dissents in part and concurs in the results only in part in a separate opinion.\nJudge STEELMAN concurs.\n. The Full Commission found that plaintiff had \u201cworked a few days between May 20 and May 24, 2001, for which she received pay, although she had been restricted from work. . . . [P]laintiff also worked two half-days in July 2001, but was not paid for those days. Her wages were used to pay her health insurance premiums.\u201d", "type": "majority", "author": "JACKSON, Judge." }, { "text": "WYNN, Judge,\ndissenting in part and concurring in the results only in part.\nBecause I find that the majority reweighs the evidence in this case and improperly substitutes its judgment for that of the Full Commission, I respectfully dissent.\nI note at the outset that this Court\u2019s review of an Opinion and Award of the Full Commission is \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). Most significantly, 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 Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (emphasis added) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999).\nThus, if there is any evidence at all, taken in the light most favorable to the non-moving party, the finding of fact made by the Full Commission stands, even if there is substantial evidence supporting the opposing position. Id. Findings may therefore be set aside on appeal only \u201cwhere there is a complete lack of competent evidence to support them.\u201d Rhodes v. Price Bros., 175 N.C. App. 219, 221, 622 S.E.2d 710, 712 (2005) (emphasis added and quotation omitted).\nI.\nFirst, I disagree with the majority\u2019s conclusion that the Full Commission erred in failing to address whether Ms. Richardson timely reported her worker\u2019s compensation claim pursuant to North Carolina General Statute \u00a7 97-22.\nThe majority cites to Booker v. Duke Medical Center for the proposition that the Full Commission should make findings as to an employer\u2019s ability to \u201cprovide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury\u201d and to conduct \u201cthe earliest possible investigation of the circumstances surrounding the injury.\u201d 297 N.C. 458, 481, 256 S.E.2d 189, 204 (1979) (citation omitted). However, I note that the Supreme Court also held in Booker that the defendant-employer had waived the issue of notice by failing to raise it before the Full Commission, and that the facts indicated that the defendant-employer did have actual notice of the employee\u2019s work-related illness. Id. at 482, 256 S.E.2d at 204. Thus, I find the language from Booker cited by the majority to be dicta from the Supreme Court, offered only in the context of discussing \u201c[t]he purpose of the notice-of-injury requirement,\u201d id. at 481, 256 S.E.2d at 204, and not stated as a directive to the trial court as to what specific findings must be made.\nMoreover, in Jones v. Lowe\u2019s Companies, this Court referred to the \u201cpurpose of the statutory notice requirement\u201d when explaining how the Industrial Commission should determine whether prejudice exists, not as a requirement as to what findings are necessary for the Full Commission to make. 103 N.C. App. 73, 76-77, 404 S.E.2d 165, 167 (1991). Indeed, we vacated and remanded the Industrial Commission\u2019s Opinion and Award in that case, finding that the record showed that the employee did have a reasonable excuse for lack of written notice so the Commission had to make a determination as to prejudice. Id. at 76, 404 S.E.2d at 167. Significantly, however, we held that \u201cthe burden is on Employer to show prejudice.\u201d Id.\nLikewise, the Supreme Court explicitly stated in Booker its finding that a worker\u2019s compensation claim is barred \u201cif the employer is not notified within 30 days of the date the claimant is informed of the diagnosis unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.\u201d 297 N.C. at 481, 256 S.E.2d at 203 (emphasis added and quotation omitted). The holdings from these cases make clear that the statute does not require specific findings as to prejudice, only that the Commission find to its \u201csatisfaction\u201d that the employer failed to show prejudice.\nIn the instant case, the Full Commission made the explicit finding that:\nThe plaintiff notified the defendant-employer about her accident on May 16, 2001, within thirty minutes. Her notice was timely. She gave written notice, by filing a Form 18 in June 2002. In light of the defendants\u2019 actual notice of the plaintiff\u2019s accident in May 2001, the defendants were not prejudiced by her failure to immediately file a written notice.\n(Emphasis added). I find this to be sufficient under the Supreme Court\u2019s language in Booker that a claim will not be barred if \u201cthe Commission is satisfied that the employer has not been prejudiced [by the failure to give written notice].\u201d Id.\nAdditionally, I note that we held in Chavis v. TLC Home Health Care that actual knowledge was a reasonable excuse for failure to give written notice:\nHere, the full Commission found that [the defendant-employer] had actual notice of [the plaintiff-employee\u2019s] accident on the day it occurred. The full Commission found also that [the defendant-employer] \u201coffered no evidence that might tend to show that they were prejudiced\u201d by any delay in written notification. Although [the defendant-employer] now argues it was prejudiced because it was unable to direct [the plaintiff- employee\u2019s] medical treatment, it did not argue this to the full Commission. Also, [the defendant-employer] fails to assert how it was prejudiced by [the plaintiff-employee] seeking medical treatment from her own doctor. We find competent evidence to support the full Commission\u2019s finding that [the defendant-employer] had actual knowledge of [the plaintiff-employee\u2019s] injury and was not prejudiced by any delay in written notification.\n172 N.C. App. 366, 378, 616 S.E.2d 403, 413 (2005) (citation omitted), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). This holding is binding on other panels of this Court and should be followed, given that the Full Commission\u2019s findings amounted to the conclusion that Ms. Richardson had offered a reasonable excuse for the delay in her written notice. See In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d).\nAccordingly, I would affirm the Full Commission\u2019s Opinion and Award as to the issues of notice and prejudice.\nII.\nI agree with the majority\u2019s conclusion to affirm the Full Commission\u2019s award of compensation for Ms. Richardson\u2019s treatment for headaches, carpal tunnel syndrome in her right wrist and thumb, treatment and surgeries on her right knee, and treatment and procedures on her teeth. However, I would likewise affirm the Full Commission\u2019s award of compensation for the replacement of both of Ms. Richardson\u2019s breast implants, rather than only the right breast implant.\nAs previously noted, this Court\u2019s review of a Full Commission Opinion and Award is strictly limited to determining \u201cwhether 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, 352 N.C. at 116, 530 S.E.2d at 553. We are therefore precluded from reweighing the evidence and instead review the record only to verily that it \u201ccontains any evidence tending to support the finding.\u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414.\nAdditionally, under our legal framework, \u201c[t]he objective of any proceeding to rectify a wrongful injury resulting in loss is to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money.\u201d Phillips v. Chesson, 231 N.C. 566, 571, 58 S.E.2d 343, 347 (1950). Put more simply, \u201c[t]he goal is to make the plaintiff whole.\u201d Shaver v. N.C. Monroe Constr. Co., 63 N.C. App. 605, 615, 306 S.E.2d 519, 526 (1983), disc. review denied, 310 N.C. 154, 311 S.E.2d 294 (1984); see also Watson v. Dixon, 352 N.C. 343, 347, 532 S.E.2d 175, 177-78 (2000) (citing Bowen v. Fidelity Bank, 209 N.C. 140, 144, 183 S.E. 266, 268 (1936) (\u201cThe purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.\u201d)). Workers\u2019 compensation cases are a subset of these compensatory damages cases; they seek to compensate the employee for medical expenses and the loss of earning capacity while also limiting the liability of employers. See Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 190, 345 S.E.2d 374, 381 (1986). Thus, although an employee may not recover traditional monetary compensatory damages, the Workers\u2019 Compensation Act nevertheless seeks to make an injured employee whole by providing for her medical treatment to restore her, to the extent possible, to the same condition she was in prior to a compensable accident and injury.\nThis is true even when the injury merely accelerated or aggravated an employee\u2019s pre-existing condition. See Davis v. Columbus County Schs., 175 N.C. App. 95, 101, 622 S.E.2d 671, 676 (2005) (citing Anderson v. Northwestern Motor Co., 233 N.C. 372, 374, 64 S.E.2d 265, 267 (1951)). \u201cIn such a case, where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the pre-existing condition will not be weighed.\u201d Wilder v. Barbour Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d 690, 694 (1987) (citation omitted). .\nIn the instant case, the relevant finding by the Full Commission states:\n10. The damage to plaintiff\u2019s breast implants were caused or aggravated by the accident. Dr. Bowers testified that the accident caused the leak he found in the plaintiff\u2019s right breast implant. He was not certain whether the accident caused the rippling in her left breast implant or whether the rippling was from normal wear and tear. However, Dr. Bowers noted that, even if there was deterioration of the implants pre-accident, the trauma to the plaintiff\u2019s chest would \u201cmost definitely\u201d have accelerated or aggravated the process. Dr. Bowers replaced both implants, even though only one had ruptured, because the replacements would have to be symmetrical and evenly matched. Replacement of one implant required replacement of both.\n(Emphasis added). In his deposition, Dr. Bowers stated that he did not believe the left implant had been ruptured, but \u201cit did have that rippling around the periphery.\u201d Although Dr. Bowers did not have the medical records from Ms. Richardson\u2019s first implant surgery, he made the assumption that she had had 475 cc implants that were under-filled, which could lead to the rippling effect she had noticed \u2014 but he also stated that he was not certain as to the exact amount of fluid Ms. Richardson had in her first implants. Dr. Bowers also confirmed that the right breast implant did appear to be ruptured' based on the amount of fluid it was missing, such that there was a lot less fluid in the right implant than in the left implant.\nMs. Richardson testified that she had not had any problems with her breast implants prior to the accident and had been satisfied with the result of that earlier surgery. She further stated that she believed her implants were affected by the accident because \u201cthey had decreased. You could see rippling that you could not see before.\u201d Additionally, her bra size had changed. Ms. Richardson recounted that she had her breast implants replaced with implants of the same size, because they had decreased in size after the accident and she wanted \u201c[t]o achieve the look that [she] had before the wreck.\u201d\nThis testimony was corroborated by the notes Dr. Bowers took following his initial consultation with Ms. Richardson, which likewise recounted that she reported a decrease in breast size and rippling in both implants following the accident. Moreover, Dr. Bowers wrote that, \u201c[i]f these were initially 475 cc implants, then clearly they are smaller than they were.\u201d Following the surgery, Dr. Bowers recorded \u201c[v]ery nice symmetry\u201d and that the procedure \u201cseems to have corrected the deficit which she noticed post car accident.\u201d\nI believe this testimony and evidence supports the Full Commission\u2019s finding that replacement of both implants was necessary to ensure that they would be \u201csymmetrical and evenly matched[,]\u201d and that \u201c[replacement of one implant required replacement of the both.\u201d Given that the right implant was ruptured and necessitated replacement, the sole means of ensuring that both implants would be symmetrical \u2014 and in the condition they were prior to Ms. Richardson\u2019s car accident \u2014 was to replace and fill both to the same saline level. The majority\u2019s holding would force any woman who suffered this type of compensable injury, including one who had undergone reconstructive surgery following a double mastectomy, to choose between a noticeably asymmetrical appearance or out-of-pocket payment for treatment necessary due only to a compensable injury. I cannot agree with such an outcome. Accordingly, I would therefore affirm the Full Commission in this regard.\nIII.\nNext, I find that the Full Commission\u2019s Opinion and Award recognizes that Maxim Healthcare does, in fact, have a lien on Ms. Richardson\u2019s third-party settlement with Nationwide Insurance, and that it further allows for either party to apply to the Superior Court to subsequently determine the amount of that lien. This conclusion is exactly in line with the language and directive of North Carolina General Statute \u00a7 97-10.2 (2005). Accordingly, I see no error or reason to reverse and remand on this issue and would instead affirm the Full Commission.\nAs noted by the majority, section 9740.2(b) gives an employee the exclusive right to enforce the liability of a third party for an injury. N.C. Gen. Stat. \u00a7 9740.2(b). The statute further dictates that \u201cevery party to the claim for compensation shall have a lien to the extent of his interest . . . upon any payment made by the third party . . . and such lien may be enforced against any person receiving such funds.\u201d Id. \u00a7 9740.2(h). Although the written consent of the employer is generally required before a third-party settlement is valid and enforceable, see id., the statute also allows an exception for the employee to settle with the third party and then have either the employer or the employee \u201capply to the resident superior court judge ... to determine the subrogation amount[.]\u201d Id. \u00a7\u00a7 9740.2(h)(2), 0). The statute includes factors that the trial court should consider in using its discretion to determine the amount of the lien the employer should have against the employee\u2019s third-party settlement. Id. \u00a7 9740.2(j).\nIn the instant case, the Full Commission\u2019s conclusion states:\n5. Plaintiff\u2019s settled claim against Nationwide Insurance is a third-party claim and, thus, N.C. Gen. Stat. \u00a7 97-10.2 applies to provide the defendants a statutory lien.\nN.C. Gen. Stat. \u00a7 97-10.2(j) provides in pertinent part:\n[I]n the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose, where the injured employee resides or the presiding judge before whom the cause of action is pending, to determine the subrogation amount.\nThus, the defendants may be entitled to a credit for plaintiffs third party recovery pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j).\nFrom its plain language, the Opinion and Award \u201cprovide [s] the defendants a statutory lien[]\u201d against Ms. Richardson\u2019s third-party settlement with Nationwide Insurance. Nevertheless, by stating only that \u201cthe defendants may be entitled to a eredit[,]\u201d the Full Commission complied with the express statutory directive that it is the responsibility of a Superior Court judge \u2014 not that of the Full Commission \u2014 to determine the actual amount of the lien.\nThis conclusion of law fully comports with the applicable statute; the Full Commission recognized that Maxim Healthcare has an automatic statutory lien on Ms. Richardson\u2019s settlement but left the amount to be determined by a Superior Court judge upon application by either party. As such, the Full Commission has already done in its Opinion and Award what the majority would direct them to do on remand. I would therefore affirm the Full Commission.\nIV.\nFinally, I concur in the result only of the dismissal of Maxim Healthcare\u2019s third assignment of error. I, too, would dismiss the assignment of error contending that the Full Commission erred in \u201comitting relevant stipulated documents from the transcript of the evidence prepared by the Industrial Commission.\u201d Maxim Healthcare failed to present or discuss any actual argument as to this assignment of error in their brief to this Court; accordingly, under our Rules of Appellate Procedure, it must be dismissed. N.C. R. App. P. 28(b)(6). Because Maxim Healthcare essentially abandoned this assignment of error by failing to argue it, I would dispose of this assignment of error in the same manner the majority has treated Maxim Healthcare\u2019s assignment of error concerning the Full Commission\u2019s Finding of Fact number 24, namely, to dismiss it as abandoned.\n. I note, too, that this finding is corroborated by the following statement by the Deputy Commissioner who heard this case, with respect to the issue of notice:\nHere, the testimony is that [Maxim Healthcare] had actual notice. . . . Now, they did nothing. Again, we had somebody who went to the hospital. At a very minimum, they knew at that point that they had hospital bills they needed to pay. . . . Now, . . . each side is saying that neither did what they should have done. Be that as it may, there was enough notice given here that somebody on [Maxim Healthcare\u2019s] part should have done something. They didn\u2019t. So, no, [Ms. Richardson] didn\u2019t do everything she should have done, but she did enough. . . . And again, [Maxim Healthcare] knew of the injury by accident on the date of the accident. If they didn\u2019t do any investigation to determine what \u2014 and the extent of her injuries, it\u2019s a little late for them to complain now or a year or so later, after she filed an 18,..., when they had an opportunity, because of their notes, to investigate the claim, but they did not.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WYNN, Judge," } ], "attorneys": [ "Anne R. Harris, for plaintiff-appellee.", "Robinson & Rawing, R.R.R, by Jolinda J. Babcock and Eleasa H. Allen, for defendants-appellants." ], "corrections": "", "head_matter": "PENNY M. RUMPLE RICHARDSON, Employee, Plaintiff-Appellee v. MAXIM HEALTHCARE/ALLEGIS GROUP, Employer, and KEMPER INSURANCE COMPANY/AMERICAN PROTECTION INSURANCE c/o SPECIALTY RISK SERVICES, Carrier, Defendants-Appellants\nNo. COA06-875\n(Filed 5 February 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to include record or transcript references\nDefendants\u2019 third assignment of error in the record on appeal in a workers\u2019 compensation case is dismissed based on a failure to include clear and specific record or transcript references in violation of N.C. R. App. P 10(c), because: (1) defendants made only a blanket reference to transcript volumes I and II without making reference to a particular error, and there are 3,285 transcript pages in the transcripts; and (2) defendants failed to specify which documents should have been included in the transcripts, and failed to provide specific record or transcript references.\n2. Workers\u2019 Compensation\u2014 notice of accident \u2014 timeliness\u2014 findings of fact \u2014 reasonable excuse for failing to provide written notice \u2014 prejudice based on delay in written notification\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to address whether plaintiff employee timely reported her claim under N.C.G.S. \u00a7 97-22 and whether her case should be barred for her failure to do so because: (1) although the evidence demonstrated, and the full Commission found, that defendant had actual knowledge of plaintiff\u2019s accident, the Commission failed to make the crucial finding that plaintiff provided a reasonable excuse for her failure to timely provide written notice of her accident; and (2) N.C.G.S. \u00a7 97-22 also requires that the Commission be satisfied that the employer has not been prejudiced by the delay in written notification, and the mere existence of actual notice without mor\u00e9 cannot satisfy the statutorily required finding with respect to prejudice. The case is remanded for specific findings with respect to whether plaintiff satisfied her burden of showing a reasonable excuse for not providing defendant employer with written notice of her accident within thirty days of its occurrence, and for adequate findings of fact with respect to the issue of prejudice to defendant employer.\n3. Workers\u2019 Compensation\u2014 causation of injuries \u2014 competent evidence \u2014 headaches\u2014hand and wrist \u2014 knee\u2014breast implants\nAlthough the Industrial Commission did not err in a workers\u2019 compensation case by finding there was competent evidence that causally related plaintiff\u2019s various injuries to her motor vehicle accident of 16 May 2001 including for headaches, her right hand and wrist, and her knee, it erred when it concluded plaintiff sustained compensable injuries to her bilateral breast implants. The case is remanded for a determination of the appropriate amount of compensation for the replacement of plaintiff\u2019s right breast implant, because although breast implants satisfy the statutory requirement under N.C.G.S. \u00a7 97-2(6) as compensable prosthetic devices that functions as part of the body, plaintiff\u2019s breast implant surgeon testified unequivocally that the rippling in the left breast implant most likely was due to the original implant\u2019s being underfilled and that the rippling was not caused or aggravated by the accident.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAlthough defendants contend the full Commission erred in a workers\u2019 compensation case by its finding of fact number 24, this assignment of error is dismissed, because defendants failed to make an argument in their brief relating to this assignment of error or the full Commission\u2019s findings with respect to plaintiff\u2019s teeth as required by N.C. R. App. P. 28(b)(6).\n5. Workers\u2019 Compensation\u2014 disability \u2014 burden of proof\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff carried her burden of proving disability because: (1) plaintiff showed that defendant did not provide light-duty work to her other than for two days in June 2002, a doctor testified that plaintiff would have difficulty performing her regular job until at least February 2003 following her knee surgery in June 2002, and plaintiff showed she was placed on one-handed work restrictions by a doctor that was scheduled to continue until at least January 2004; (2) although plaintiff returned to work on a few occasions during the pertinent time period, such intermittent and infrequent work days did not constitute a successful trial return to work; and (3) defendants failed to carry their burden of proving that plaintiff was capable of obtaining suitable employment and failed to rebut the ongoing presumption of disability.\n6. Workers\u2019 Compensation\u2014 lien \u2014 third-party settlement\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to award defendants a lien on all amounts accepted by plaintiff in her third-party settlement with her uninsured motorists carrier, and the case is remanded for findings consistent with this Court of Appeals opinion, because: (1) N.C.G.S. \u00a7 97-10.2(j) provides that either party may apply to the superior court for a determination of the subrogation amount, regardless of whether both parties consented to the third-party settlement, if justified by the equities of the case; (2) contrary to the full Commission\u2019s conclusion, defendants\u2019 credit does not depend upon an award by the superior court since N.C.G.S. \u00a7 97-10.2(h) clarifies that the lien is automatic, and instead plaintiff may apply to the superior court for a determination of the lien amount under N.C.G.S. \u00a7 97-10.2Q); and (3) unless and until plaintiff applies to the superior court for a determination of the subrogation amount, defendants are entitled to a lien on all corresponding uninsured motorist benefits received by plaintiff, less the portion expended for the cost of replacing plaintiff\u2019s left breast implant.\nJudge WYNN dissenting.\nAppeal by defendants from Opinion and Award of the Full Commission of the North Carolina Industrial Commission entered 15 March 2006. Heard in the Court of Appeals 20 February 2007.\nAnne R. Harris, for plaintiff-appellee.\nRobinson & Rawing, R.R.R, by Jolinda J. Babcock and Eleasa H. Allen, for defendants-appellants." }, "file_name": "0337-01", "first_page_order": 367, "last_page_order": 395 }