{ "id": 4160359, "name": "ROBERT H. ALPHIN, Employee, Plaintiff v. TART L.P. GAS COMPANY, Employer, AETNA LIFE & CASUALTY COMPANY, Carrier, Defendants", "name_abbreviation": "Alphin v. Tart L.P. Gas Co.", "decision_date": "2008-09-16", "docket_number": "No. COA07-731", "first_page": "576", "last_page": "593", "citations": [ { "type": "official", "cite": "192 N.C. App. 576" } ], "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": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "year": 1990, "opinion_index": -1, "case_paths": [ "/nc-app/101/0024-01" ] }, { "cite": "650 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639355, 12639356, 12639357 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/650/0594-01", "/se2d/650/0594-02", "/se2d/650/0594-03" ] }, { "cite": "638 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637390 ], "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0564-01" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "493", "parenthetical": "holding that presumption of disability in favor of employee arises in \"limited circumstances,\" including \"(1) when there has been an executed Form 21 . . .; (2) when there has been an executed Form 26 ...; or (3" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "544 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684929, 684932, 685092, 684968, 685021 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0587-03", "/nc/352/0587-02", "/nc/352/0587-01", "/nc/352/0587-04", "/nc/352/0587-05" ] }, { "cite": "210 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "183" } ], "opinion_index": 0 }, { "cite": "286 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565054 ], "year": 1974, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0235-01" ] }, { "cite": "532 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079774 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0353-01" ] }, { "cite": "476 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "901", "parenthetical": "holding that Rule 21 presumption applied even when Commission had approved Form 24 request to terminate benefits because plaintiff had been released to return to work" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889566 ], "year": 1996, "pin_cites": [ { "page": "399-400", "parenthetical": "holding that Rule 21 presumption applied even when Commission had approved Form 24 request to terminate benefits because plaintiff had been released to return to work" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0396-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "360 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "700", "parenthetical": "holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358120 ], "year": 1987, "pin_cites": [ { "page": "216", "parenthetical": "holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0208-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "year": 1997, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "473 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914018 ], "year": 1996, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0507-01" ] }, { "cite": "582 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "350", "parenthetical": "remanding to Commission for failing to award \"credit to defendants for payment of the lump sum permanent partial disability award\" after plaintiff sought ongoing temporary total disability benefits" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188968 ], "year": 2003, "pin_cites": [ { "page": "685", "parenthetical": "remanding to Commission for failing to award \"credit to defendants for payment of the lump sum permanent partial disability award\" after plaintiff sought ongoing temporary total disability benefits" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0678-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "357 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "676" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "320 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728643 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "40" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0038-01" ] }, { "cite": "477 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867530, 867637, 867578, 867644, 867710 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0629-03", "/nc/344/0629-04", "/nc/344/0629-05", "/nc/344/0629-01", "/nc/344/0629-02" ] }, { "cite": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "385-86" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "year": 1996, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "opinion_index": 0 }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "year": 1994, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "361 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741811 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0583-01" ] }, { "cite": "181 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371948 ], "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0050-01" ] }, { "cite": "477 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889375 ], "year": 1996, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0320-01" ] }, { "cite": "572 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "797", "parenthetical": "\"Thus, absent waiver of the presumption by the employee or a hearing by the Commission, no change'in disability benefits owed may occur.\"" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251694 ], "year": 2002, "pin_cites": [ { "page": "683", "parenthetical": "\"Thus, absent waiver of the presumption by the employee or a hearing by the Commission, no change'in disability benefits owed may occur.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0680-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "749-50", "parenthetical": "applying tests in Kisiah and Kennedy" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "pin_cites": [ { "page": "763-65", "parenthetical": "applying tests in Kisiah and Kennedy" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "221 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "289 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567848 ], "year": 1976, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0254-01" ] }, { "cite": "483 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53949, 54219, 53871, 53978, 54045 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0343-02", "/nc/345/0343-03", "/nc/345/0343-01", "/nc/345/0343-05", "/nc/345/0343-04" ] }, { "cite": "476 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "439" }, { "page": "438" }, { "page": "439" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888498 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "81" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0072-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "545 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135876 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0446-01" ] }, { "cite": "534 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "605" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497249 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/139/0553-01" ] }, { "cite": "530 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "65" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "352 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685096 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "140" }, { "page": "139-40" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0136-01" ] }, { "cite": "570 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511216, 1511475, 1511446, 1511182 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0299-02", "/nc/356/0299-04", "/nc/356/0299-01", "/nc/356/0299-03" ] }, { "cite": "563 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 913", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133316 ], "year": 2002, "pin_cites": [ { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0913-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "44", "parenthetical": "holding that presumption of disability in favor of employee arises in \"limited circumstances,\" including \"(1) when there has been an executed Form 21 . . .; (2) when there has been an executed Form 26 ...; or (3" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 0 }, { "cite": "374 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527201 ], "year": 1988, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0478-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "585 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954923 ], "year": 2003, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0180-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "543 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155778, 1155688, 1155729, 1155570, 1155866 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0473-01", "/nc/351/0473-05", "/nc/351/0473-04", "/nc/351/0473-02", "/nc/351/0473-03" ] }, { "cite": "524 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239575 ], "year": 2000, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0351-01" ] }, { "cite": "409 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521328 ], "year": 1991, "pin_cites": [ { "page": "285-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0284-01" ] }, { "cite": "535 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "year": 2000, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "year": 1990, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0024-01" ] } ], "analysis": { "cardinality": 1232, "char_count": 43351, "ocr_confidence": 0.747, "pagerank": { "raw": 9.750082203879049e-08, "percentile": 0.5310417711611758 }, "sha256": "065624b1ed5c1d65d5a390c4a1dac35c33b73c2bb4f460208c6d38b838c20d19", "simhash": "1:1f60ec403c2b333f", "word_count": 6780 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and STEELMAN concur." ], "parties": [ "ROBERT H. ALPHIN, Employee, Plaintiff v. TART L.P. GAS COMPANY, Employer, AETNA LIFE & CASUALTY COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Robert H. Alphin appeals from an opinion and award of the North Carolina Industrial Commission denying his motion to reinstate benefits and determining that he failed to prove that he has been totally disabled or had diminished wage-earning capacity. Based upon our review of controlling precedents regarding the presumption of continuing disability arising from Form 21 and Form 26 agreements, we hold that the Commission erred in concluding that the presumption in this case had \u201cended.\u201d Instead, the burden of rebutting the presumption of continuing disability remained on defendants, and the Commission was required to determine whether defendants had met their burden before deciding that plaintiff was not entitled to indemnity compensation. With respect to plaintiffs motion to reinstate benefits, our standard of review requires that we uphold the Commission\u2019s determination that plaintiff did not show that his unjustified refusal to cooperate had ceased. Accordingly, we affirm in part and reverse and remand in part.\nFacts\nPlaintiff suffered a compensable injury on 8 March 1990 resulting in low back pain radiating into his right leg. The parties executed a Form 21 pursuant to which defendants agreed to pay temporary total disability compensation to plaintiff for \u201cnecessary weeks\u201d; the agreement was approved by the Commission on 2 April 1990. Subsequently, plaintiff returned to work on at least two occasions. The record indicates, however, that on 28 June 1990, the parties entered into a Form 26 agreement to reinstate temporary total disability compensation for \u201cnecessary weeks.\u201d On 13 July 1990, defendants filed, and the Commission approved, a Form 24 application to terminate compensation.\nIn October 1990, defendants filed another Form 26, stating that plaintiff had reached maximum medical improvement and agreeing to pay plaintiff compensation for a 10% permanent partial impairment to his back. The Commission approved the agreement on 1 November 1990, and defendants filed a Form 28B on 11 December 1990, stating that the case was being closed by the defendant carrier.\nThe parties executed a third Form 26 agreeing that plaintiff had again became totally disabled as of 23 July 1991 and agreeing to reinstate temporary total disability for \u201cnecessary weeks.\u201d On 16 December 1991, the parties entered into a fourth Form 26 agreeing that plaintiff had reached maximum medical improvement, that he had a 15% permanent partial impairment rating, and that defendants would pay plaintiff for the 5% increase in his rating. The Commission approved the fourth Form 26 agreement on 7 January 1992, and the defendant carrier filed another Form 28B closing the case.\nA fifth Form 26 agreement was executed with the parties agreeing to payment of continuing temporary total disability compensation beginning 4 March 1993 and continuing \u201cfor necessary weeks.\u201d The Commission approved this agreement on 11 May 1993.\nIn the opinion and award on appeal, the Commission found, that as of 11 November 1993, plaintiff was capable of earning wages in sedentary work with no bending and twisting, although if plaintiff was sitting, he would need a couple of minutes every half hour to stand. Plaintiff had a 25% permanent partial impairment rating to the back. These findings were based on the evaluation of Kenneth J. Rich, M.D. reflected in a note dictated on 11 November 1993. Defendants paid plaintiff the increase of 10% in his permanent partial impairment rating.\nOn 10 May 1994, the Commission ordered plaintiff to cooperate with vocational rehabilitation efforts. On 25 May 1994 and again on 30 November 1994, the Commission denied defendants\u2019 Form 24 applications to stop payment of compensation. Defendants filed another Form 24 on 17 May 1995, alleging that plaintiff had failed to comply with vocational rehabilitation. The Executive Secretary\u2019s Office approved this Form 24 on 5 July 1995 effective 5 May 1995.\nPlaintiff filed a Form 33 request for a hearing on 17 April 1996, alleging that defendants refused to pay permanent and total disability compensation. Plaintiff also filed a motion for reinstatement of benefits on 24 June 1996 claiming that he had fully complied with defendants\u2019 rehabilitation efforts, but adding that if the Commission found he had failed to comply, he was at that point ready, willing, and able to fully and completely cooperate.\nFollowing a hearing before the deputy commissioner on 19 December 1996, the deputy determined that plaintiff had participated in vocational rehabilitation in a reasonable fashion and that temporary total disability payments should be reinstated. The deputy, however, also found that plaintiff\u2019s entitlement to temporary total disability benefits ended when he reached maximum medical improvement on 7 November 1996, and after that date, plaintiff was entitled only to his rating.\nBoth parties appealed to the Full Commission. In an opinion and award filed 17 March 1999, the Commission reversed the deputy commissioner\u2019s decision concluding that plaintiff had failed to cooperate with vocational rehabilitation after being ordered to do so; defendants were entitled to terminate plaintiff\u2019s compensation for failure to cooperate; and plaintiff reached the end of his vocational rehabilitation period on 5 May 1995 when he refused to cooperate. In addition to addressing the failure to cooperate, the Commission found that \u201c[a]s of November 11, 1993, plaintiff was capable of earning wages in sedentary work with no bending and twisting and with sitting and standing and if sitting, being provided a couple of minutes every half hour to stand.\u201d\nPlaintiff appealed to this Court, and on 16 May 2000, this Court issued an opinion affirming in part, reversing in part, and remanding to the Full Commission. Alphin v. Tart L.P. Gas Co., 138 N.C. App. 167, 535 S.E.2d 117 (May 16, 2000) (unpublished). The Court affirmed the Commission\u2019s determination that plaintiff had not complied with vocational rehabilitation, but held that the Commission was only authorized to suspend \u2014 and not terminate \u2014 benefits until plaintiff\u2019s unjustified refusal to cooperate ceased. The Court directed that the Commission\u2019s opinion and award on remand specify that plaintiff might be entitled to weekly compensation benefits upon a proper showing that plaintiff was willing to cooperate with defendants\u2019 rehabilitative efforts.\nOn 8 December 2000, the Full Commission entered an order denying plaintiff\u2019s motion for resumption of benefits on the grounds that \u201cplaintiff has not made a proper showing nor has he affirmatively established that he is willing to cooperate with defendants\u2019 rehabilitative efforts.\u201d On the same date, based on this Court\u2019s decision, the Commission amended its opinion and award to provide that plaintiff\u2019s benefits were only suspended. The Commission, however, repeated its earlier finding that plaintiff was capable of earning wages in sedentary work with restrictions and awarded plaintiff compensation for his 25% permanent partial rating to his back subject to an offset for compensation already paid by defendants. Plaintiff filed notice of appeal to this Court on 3 January 2001, but never perfected the appeal.\nOn 5 April 2001, plaintiff filed a motion to resume payment of temporary total workers\u2019 compensation benefits, alleging that defendants refused to provide vocational rehabilitation despite plaintiff\u2019s expressed willingness to cooperate. On 20 April 2001, the Executive Secretary entered an order, stating: \u201cDue to the fact that the issues contained in the Opinion and Award filed on March 17, 1999 are currently on appeal to the North Carolina Court of Appeals, IT IS HEREBY ORDERED that the plaintiff\u2019s Motion is denied in the administrative forum.\u201d\nOn 13 June 2001, plaintiff filed a Form 33 request for hearing, stating: \u201cI have not received any temporary total benefits since May 5, 1995 and have not returned to gainful employment.\u201d The deputy commissioner issued an opinion and award finding that \u201c[p]laintiffs verbal assurances of cooperation have not been accepted as credible, not only because of his previous problems with the rehabilitation providers but also because of his appearance and demeanor at the hearing.\u201d\nPlaintiff appealed the deputy commissioner\u2019s decision to the Full Commission. On 9 May 2003, the Full Commission entered an order finding that \u201c[t]he record indicates that the most recent medical evaluation of plaintiff\u2019s condition occurred on 11 November 1993, when Dr. Rich released plaintiff to return to work with restrictions and rated him with a 25% permanent partial disability to his back. The Full Commission finds as a fact that an updated independent medical evaluation is necessary to determine the extent of plaintiff\u2019s continuing disability, if any, and whether he would benefit from a resumption of vocational rehabilitation.\u201d The Commission ordered plaintiff to submit to an independent medical examination and held the record in the case open until the Commission received the results of the evaluation. The issue of reinstatement of plaintiff\u2019s benefits was held in abeyance pending receipt of the results of the evaluation and the closing of the record. Dr. Rich performed the independent medical examination on plaintiff, and the Commission received his deposition testimony in September 2004.\nOn 22 March 2007, the Full Commission filed an opinion and award affirming the holding, but entirely modifying, the opinion and award of the deputy commissioner. The Commission' concluded that plaintiff had failed to make a proper showing that his unjustified refusal to cooperate with vocational rehabilitation had ceased and that plaintiff was not, therefore, entitled to have his compensation reinstated. It further determined that plaintiff\u2019s presumption of total disability had \u201cended,\u201d that plaintiff was required to prove continuing disability, and that plaintiff had not proven that he was totally disabled or had diminished wage-earning capacity after 5 May 1995. The Commission, therefore, denied plaintiff\u2019s claim for additional indemnity compensation. Plaintiff timely appealed the opinion and award to this Court.\nDiscussion\nOur review of a decision of the Industrial Commission is limited to a determination \u201cwhether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.\u201d Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The findings of the Commission are conclusive on appeal when there is competent evidence to support them, even if there is evidence to the contrary. Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). \u201c \u2018The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). This Court, however, reviews the Commission\u2019s conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).\nI\nAs an initial matter, plaintiff contends that the issue whether he was totally or partially disabled was not properly before the Commission for decision. According to plaintiff, the Commission\u2019s 9 May 2003 order requiring plaintiff to submit to an independent medical examination was improper because the Commission did not have the authority to review his disability status pursuant to N.C. Gen. Stat. \u00a7 97-83 (2007).\nN.C. Gen. Stat. \u00a7 97-83 provides that \u201cupon the arising of a dispute under this Article, either party may make application to the Commission for a hearing in regard to the matters at issue, and for a ruling thereon.\u201d Plaintiff points to the fact that defendants never applied to the Commission for a hearing on the issue of plaintiff\u2019s ongoing disability, but rather solely filed Form 24 applications seeking to terminate compensation for failure to cooperate with vocational rehabilitation efforts. Plaintiff further notes that this Court\u2019s prior decision in this case addressed only whether the Commission could terminate, as opposed to suspend, benefits under N.C. Gen. Stat. \u00a7 97-25 (2007) and, therefore, did not mandate that plaintiff prove his continuing disability.\nIt is well established that when a party appeals to the Full Commission, it is the \u201cduty and responsibility of the full Commission to decide all of the matters in controversy between the parties.\u201d Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d 610, 613 (1988). Our review of the record in this case indicates that the issue of plaintiff\u2019s total or partial disability has consistently been identified as an issue before the Commission.\nIn plaintiffs 1996 motion to reinstate benefits, plaintiff asserted as one of his grounds that he \u201ccontinues to be totally and permanently impaired and is unable to work in any capacity whatsoever\u201d and, therefore, that he \u201cis entitled to continue to receive benefits for his total disability pursuant to N.C.G.S. \u00a797-29.\u201d In his Form 44 application for review of the deputy commissioner\u2019s decision denying reinstatement, plaintiff asserted that the deputy commissioner erred \u201con the grounds that the defendant did not carry its burden of proving that the claimant was capable of earning the same or greater wages that he earned at the time he was injured . . . .\u201d Subsequently, after the Full Commission\u2019s opinion and award following remand by this Court, plaintiff filed a motion with the Executive Secretary for resumption of payment of benefits in support of which he asserted that he \u201chas been totally and permanently impaired \u00e1nd disabled since his original on the job injury\u201d and that he. \u201chas not been able to work in any capacity or earn any income whatsoever since March 8, 1990.\u201d\nPlaintiff\u2019s Form 33 request for a hearing, dated 13 June 2001, stated that the parties had been unable to agree because plaintiff had \u201cnot received any temporary total benefits since May 5, 1995 and [had] not returned to gainful employ[.]\u201d Defendants\u2019 response to the request asserted that the parties had been unable to agree because, in part, \u201c[p]laintiff has not made a proper showing that he is entitled to any further [temporary total disability] compensation.\u201d In the pre-trial agreement, defendants contended that the issues to be heard included whether plaintiff had met his burden of proving that he is disabled as a result of his injury. Following the hearing and the deputy commissioner\u2019s decision, plaintiff\u2019s Form 44 application for review by the Full Commission assigned as error:\n7. Paragraph Number 1 and 2 of the Award in that it finds that the plaintiff\u2019s claim for additional compensation is denied and orders each party to pay its own cost on the grounds that such \u201cAward\u201d ignores the plaintiff\u2019s status as a disabled and impaired employee, unable to work pursuant to the terms of the order of the North Carolina Industrial Commission issued on its Form 21 ... .\nUpon review, the Commission ordered an independent medical evaluation not only to determine \u201cthe extent of plaintiff\u2019s continuing disability, if any,\u201d but also to assess whether plaintiff \u201cwould benefit from a resumption of vocational rehabilitation.\u201d\nThus, the issue whether plaintiff has an ongoing disability from his admittedly compensable workplace injury has consistently been before the Commission. Nothing in this Court\u2019s first decision precluded the Commission from addressing the issue. Further, plaintiff\u2019s own Form 44 application for review raised the issue, as well as the relevance of the parties\u2019 Form 21 to that issue. As this Court observed in Joyner, \u201c[ijnasmuch as the Industrial Commission decides claims without formal pleadings, it is the duty of the Commission to consider every aspect of plaintiff\u2019s claim whether before a hearing officer or on appeal to the full Commission.\u201d Id. The Commission was entitled to seek out additional evidence \u2014 such as the evaluation \u2014 in order to address the issues before it. Id. Thus, we hold that the Commission did not err either in ordering the independent medical evaluation or in addressing the issue of plaintiff\u2019s continuing disability.\nII\nPlaintiff contends that the Industrial Commission incorrectly applied the law regarding presumptions when it stated:\n18. Plaintiff\u2019s acceptance of the Commission\u2019s determination that plaintiff was capable of earning wages and the Commission\u2019s award of compensation for his rating under N.C. Gen. Stat. \u00a7 97-31 ended his presumption of continuing total disability.\n36. The final decision by the Full Commission that plaintiff had reached maximum medical improvement, was capable of sedentary work and was entitled to payment for permanent partial disability based on his twenty-five percent (25%) rating ended plaintiff\u2019s presumption of continuing total disability.\nAlthough these statements were each denominated a \u201cfinding of fact,\u201d they actually present conclusions of law that we review de novo.\nIn this case, the parties entered into an initial Form 21 and subsequent Forms 26 that gave rise to a rebuttable presumption of continuing disability. See Clark v. Wal-Mart, 360 N.C. 41, 44, 619 S.E.2d 491, 493 (2005) (holding that presumption of disability in favor of employee arises in \u201climited circumstances,\u201d including \u201c(1) when there has been an executed Form 21 . . .; (2) when there has been an executed Form 26 ...; or (3) when there has been a prior disability award from the Industrial Commission\u201d). As this Court has explained, \u201cwhen a Form 26 supplemental agreement is executed, the nature of the disability is determined according to what is specified in the Form 26 supplemental agreement.\u201d Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 918, 563 S.E.2d 235, 239, disc. review denied, 356 N.C. 299, 570 S.E.2d 505 (2002).\nThe Supreme Court instructed in Saunders v. Edenton Ob/Gyn Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000), that we must look to the terms of the last agreement of the parties. Therefore, the terms of the final Form 26, \u201centered into by the parties and approved by the Commission, are the final terms which became binding between the parties.\u201d Id. In this case, as the Commission found, \u201c[t]he parties executed a fifth Form 26 agreement for payment of continuing temporary total disability compensation beginning March 4, 1993. The Commission approved this Form 26 agreement on May 11, 1993. Plaintiff again had a presumption of continuing temporary total disability under this agreement.\u201d Nothing in the Commission\u2019s opinion and award and nothing in the record itself indicates that the parties ever entered into another agreement.\nThus, by virtue of the final Form 26, plaintiff had a presumption of continuing total disability. The Commission, however, concluded that this presumption \u201cended\u201d with the Commission\u2019s \u201cfinal decision\u201d that plaintiff had reached maximum medical improvement, that he was capable of sedentary work, and that he was entitled to compensation for his rating. As support for this conclusion, the Commission cited only Dancy v. Abbott Labs., 139 N.C. App. 553, 534 S.E.2d 601 (2000), aff\u2019d per curiam, 353 N.C. 446, 545 S.E.2d 211 (2001). Nothing in Dancy, however, appears to justify the conclusion reached by the Commission.\nIn Dancy, the Form 21 agreement providing for total disability benefits for an indefinite period was followed by a Form 26 agreement specifying that the employee would be paid temporary partial disability for two weeks. Id. at 559, 534 S.E.2d at 605. This Court held, based on Saunders, that the Form 26 \u201csuperseded the earlier agreement,\u201d and the plaintiff had only a presumption of continuing partial disability. Id. Since, in this case, the final Form 26 provided for payment of total disability benefits for \u201cnecessary weeks,\u201d there was still a presumption of continuing total disability.\nThe only part of Dancy that can be viewed as addressing when the presumption has \u201cended\u201d \u2014 the basis for the Commission\u2019s conclusion in this case \u2014 is the opinion\u2019s general discussion of the presumption. This Court observed that \u201c[w]e have held that \u2018[u]nless the presumption [in favor of disability] is waived by the employee, no change in disability compensation may occur absent the opportunity for a hearing. . . . [0]ne such way a waiver might occur is when an employee and employer settle their compensation dispute in a manner consistent with N.C. Gen. Stat. \u00a7 97-17 [(1999)], and that settlement is subsequently approved by the Commission.\u2019 \u201d Id. at 558, 534 S.E.2d at 604 (quoting Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 81, 476 S.E.2d 434, 439 (1996), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997)). The Court stressed, however, that if there has been no subsequent Form 26, it \u201c \u2018has been uniformly held that an agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal.\u2019 \u201d Id. (quoting Pruitt v. Knight Publ\u2019g Co., 289 N.C. 254, 258, 221 S.E.2d 355, 358 (1976)).\nThus, under Dancy, the Form 26, as approved by the Commission, was binding on the parties as if it were an award affirmed on appeal. The Commission and defendants have identified no waiver by plaintiff of the presumption of disability arising from the Form 26. In that event, Kisiah specifies that \u201cabsent a settlement with the employee, an award of temporary total disability cannot be undone without resort to a lawful determination by the Commission that the employee\u2019s disability no longer exists \u2014 which will require the application of law to fact and, therefore, a hearing.\u201d Kisiah, 124 N.C. App. at 80, 476 S.E.2d at 438. At that hearing, the employee may rely upon the presumption and \u201cneed not present evidence . . . unless and until the employer \u2018claim [ing] that the plaintiff is capable of earning wages . . . come[s] 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.\u2019 \u201d Id. at 81, 476 S.E.2d at 439 (quoting Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)).\nIn this case, the Commission made no finding that it conducted a hearing at which defendants bore the burden set out in Kennedy, and the record contains no finding by the Commission in any of its opinions and awards that suitable jobs are available for plaintiff and that plaintiff is capable of getting one, taking into account both his physical and vocational limitations. \u201c[0]nly the Commission can ascertain whether an employer has presented evidence rebutting a Form 21 presumption of disability.\u201d Id. See also Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 763-65, 487 S.E.2d 746, 749-50 (1997) (applying tests in Kisiah and Kennedy); Rice v. City of Winston-Salem, 154 N.C. App. 680, 683, 572 S.E.2d 794, 797 (2002) (\u201cThus, absent waiver of the presumption by the employee or a hearing by the Commission, no change'in disability benefits owed may occur.\u201d).\nThe Commission based its conclusion that the presumption had \u201cended\u201d on three facts found in prior opinions and awards: (1) plaintiffs reaching maximum medical improvement, (2) the Commission\u2019s determination that plaintiff was capable of sedentary work, and (3) the Commission\u2019s award of permanent partial disability based \u00f3n a 25% rating and plaintiff\u2019s acceptance of that compensation. The Commission\u2019s conclusion cannot be reconciled with established law on the presumption of continuing disability.\nIn Brown v. S & N Commc\u2019ns, Inc., 124 N.C. App. 320, 330, 477 S.E.2d 197, 203 (1996), this Court held unambiguously: \u201cA finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury and does not satisfy the defendant\u2019s burden [of rebutting the presumption].\u201d In addition, the fact that plaintiff is capable of earning wages in sedentary work does not rebut the presumption because it relates only to plaintiff\u2019s physical limitations and does not establish that suitable jobs exist and that plaintiff is capable of getting one, taking into account both his physical limitations \u2014 the sedentary work limitation \u2014 -and his vocational limitations. See Outerbridge v. Perdue Farms, Inc., 181 N.C. App. 50, 56, 638 S.E.2d 564, 569 (holding that when Commission found an employee capable of sedentary work, it \u201cdetermined the existence of Plaintiff\u2019s disability: that his work capacity since [the specified date] is sedentary,\u201d but it did not determine extent of plaintiff\u2019s disability), aff\u2019d per curiam, 361 N.C. 583, 650 S.E.2d 594 (2007).\nThe Commission essentially concluded that the presumption had ended because plaintiff was released by Dr. Rich to return to work in a sedentary position with restrictions. Yet, it has long been the law that \u201c[a]n employee\u2019s release to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury, nor does it automatically deprive an employee of the [Form 21/26] presumption.\u201d Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994).\nThe Commission\u2019s final consideration \u2014 that it had found plaintiff to be entitled to his rating \u2014 appears to be based on a mistaken belief that plaintiff\u2019s entitlement to or receipt of benefits under N.C. Gen. Stat. \u00a7 97-31 (2007) precluded the receipt of benefits under N.C. Gen. Stat. \u00a7 97-29 (2007) for temporary total disability. While an employee cannot recover under N.C. Gen. Stat. \u00a7\u00a7 97-29 and 97-31 simultaneously, the employee has the option of choosing the most favorable recovery. Franklin v. Broyhill Furniture Indus., 123 N.C. App. 200, 205, 472 S.E.2d 382, 385-86, cert, denied, 344 N.C. 629, 477 S.E.2d 39 (1996).\nDefendants contend that plaintiff\u2019s acceptance of payment for his permanent partial disability rating pursuant to N.C. Gen. Stat. \u00a7 97-31 constituted plaintiff\u2019s election. The Commission and defendants have overlooked Gupton v. Builders Transp., 320 N.C. 38, 40, 357 S.E.2d 674, 676 (1987), in which our Supreme Court pointed out that this Court had \u201coverlooked case law from [the Supreme] Court indicating that an award under N.C.G.S. \u00a7 97-31 does not necessarily foreclose the award of additional benefits to which a claimant might be entitled.\u201d The Court explained that the focus of N.C. Gen. Stat. \u00a7 97-31 is on \u201cthe prevention of double recovery, not exclusivity of remedy\u201d and, therefore, \u201ca plaintiff entitled to select a remedy under either N.C.G.S. \u00a7 97-31 or N.C.G.S. \u00a7 97-30 may receive benefits under the provisions offering the more generous benefits, less the amount he or she has already received.\u201d Gupton, 320 N.C. at 43, 357 S.E.2d at 677.\nGiven the holding in Gupton, plaintiff did not, in this case, elect his remedy when he accepted compensation for his rating under N.C. Gen. Stat. \u00a7 97-31. If he should ultimately succeed on his claim under N.C. Gen. Stat. \u00a7 97-29 or N.C. Gen. Stat. \u00a7 97-30 (2007), then plaintiff would be entitled to choose the more favorable remedy with defendants receiving a credit for previous payments made to plaintiff. See Guerrero v. Brodie Contrs., Inc., 158 N.C. App. 678, 685, 582 S.E.2d 346, 350 (2003) (remanding to Commission for failing to award \u201ccredit to defendants for payment of the lump sum permanent partial disability award\u201d after plaintiff sought ongoing temporary total disability benefits).\nIn sum, none of the Commission\u2019s \u201cfindings\u201d support its conclusion that plaintiff\u2019s presumption of continuing disability had \u201cended.\u201d To the contrary, as a result of the parties\u2019 final Form 26, plaintiff had the benefit of a continuing presumption of total disability. He was not required to produce any evidence of disability, and, instead, the burden rested with defendants to prove plaintiff\u2019s employability We must, therefore, reverse the Commission\u2019s conclusion that plaintiff \u201chas not proven that he has been totally disabled or had diminished wage-earning capacity after May 5, 1995.\u201d We remand for a determination by the Commission whether defendants have rebutted plaintiff\u2019s presumption of continuing total disability.\nIll\nPlaintiff also challenges the Commission\u2019s decision that plaintiff did not make \u201ca proper showing that plaintiff\u2019s unjustified refusal to cooperate [in vocational rehabilitation] had ceased.\u201d Plaintiff contends that the Commission failed to make appropriate findings. of fact and conclusions of law supported by competent evidence on this issue.\nThe Commission found that in the hearing before the deputy commissioner, plaintiff presented the following testimony to support his claim that he has shown that he is ready, willing, and able to cooperate with rehabilitation:\n(a) His condition has not improved since his injury and he continued to be treated by Dr. Rick [sic] and his family physician for pain control.\n(b) Defendants had not provided him with any vocational rehabilitation services since the Form 24 application was approved [May 5, 1995].\n(c) He had expressed his willingness to fully cooperate with any vocational rehabilitation efforts that defendants provided. Plaintiff testified that he authorized his attorney to write numerous letters expressing his willingness to cooperate with vocational rehabilitation, to defendants, defendants\u2019 attorney, the Industrial Commission and his previous rehabilitation provider; that he had submitted a motion for reinstatement of compensation and an affidavit both expressing his willingness to fully cooperate with any vocational rehabilitation offered by defendants.\n(d) He has at all times since June 26, 1996, been willing to fully cooperate with any vocational rehabilitation offered by defendants.\n(e) He believed that he had fully cooperated with vocational rehabilitation prior to the suspension of his compensation in 1995.\n(f) Since June 26, 1996, defendants have not offered him any medical services, despite his requests for services.\n(g) He has not been able to, work since June 26, 1996.\n(h) He talked to and filed an application for services with the North Carolina Division of Vocational Rehabilitation Services (State Vocational Rehabilitation Services). Plaintiff\u2019s application was dated February 14, 2002.\n(Alteration original.) The Commission then found that defendants had, on cross-examination of plaintiff, established that plaintiff was receiving social security disability, had not applied for unemployment compensation, had not looked for work since 1 June 1996, had not made efforts to return to school or seek vocational retraining, and did know that he could obtain help from the Division of Vocational Rehabilitation Services until four days prior to the hearing, at which time he immediately applied for assistance. Plaintiff has not assigned error to this description of his testimony.\nThe Commission acknowledged that plaintiff has \u201crepeatedly expressed his willingness to cooperate with vocational rehabilitation offered by defendants.\u201d It then found that \u201c[simultaneously with his assurances at the hearing that he was ready and willing to cooperate, plaintiff also testified that he has not been able to work since June 26, 1996, and believed he had fully cooperated with vocational rehabilitation.\u201d The Commission then summarized plaintiffs prior conduct resisting vocational rehabilitation, explaining that in light of that conduct, it could not accept plaintiffs testimony as credible.\nThe Commission reasoned: \u201cConsidering his past conduct, the Full Commission finds that if plaintiff is of the opinion that he fully cooperated with previous vocational rehabilitation, his current written assurances of willingness to cooperate are probably a forecast of more of the same conduct.\u201d The Commission, therefore, found: \u201cEven though a Plaintiffs written assurance of intent to cooperate with vocational rehabilitation may be sufficient, based on the greater weight of the evidence the plaintiff in this case did not make a proper showing that he was willing to cooperate with vocational rehabilitation through his written declarations of willingness to cooperate or through his application for vocational assistance through the State Vocational Rehabilitation Program several days prior to the hearing before the Deputy Commissioner.\u201d \u2022\n\u201cBefore making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it.\u201d Weaver v. Am. Nat\u2019l Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996). \u201cIn weighing the evidence, the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness\u2019 testimony entirely if warranted by disbelief of that witness.\u201d Lineback v. Wake County Bd. of Comm\u2019rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997).\nPlaintiff argues on appeal, however, that \u201c[b]y finding that the Plaintiff can never be determined to be'credible based on his pre1995 hearing activities, the Industrial Commission denies Plaintiff the second chance clearly anticipated in the Court\u2019s [prior] opinion and \u00a7 97-25.\u201d We do not read the Commission\u2019s credibility findings as being based solely on plaintiff\u2019s prior conduct. Instead, the Commission pointed out that plaintiff\u2019s showing of a willingness to cooperate was based almost entirely on oral and written expressions of intent unsupported by current conduct corroborating those statements. The lone step undertaken by plaintiff \u2014 seeking assistance from the State \u2014 occurred only four days before the hearing in front of the deputy commissioner.\nIn assessing the sincerity of plaintiff\u2019s representations, the Commission could appropriately consider, as it did, plaintiff\u2019s lack of recent conduct suggesting a willingness to cooperate and any recent conduct inconsistent with his expressed intent. The Commission referred to plaintiff\u2019s pre-1995 conduct only in reference to plaintiff\u2019s testimony at the hearing that he believed that he had, during that time frame, fully cooperated. The Commission could reasonably determine that if plaintiff believed that his prior conduct constituted full cooperation \u2014 when the Commission had since ruled otherwise \u2014 then plaintiff\u2019s bare representation that he is now willing to cooperate was not entitled to much weight.\nThe Commission made ample findings of fact explaining its reasoning \u2014 and the basis for its credibility determination \u2014 in refusing to reinstate plaintiff\u2019s benefits terminated under N.C. Gen. Stat. \u00a7 97-25. It is not the role of this Court to revisit the Commission\u2019s decision regarding plaintiff\u2019s credibility. See Pitman v. Feldspar Corp., 87 N.C. App. 208, 216, 360 S.E.2d 696, 700 (1987) (holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness), disc, review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). We, therefore, affirm the Commission\u2019s opinion and award to the extent it concluded that plaintiff had not made a proper showing that his unjustified refusal to cooperate with vocational rehabilitation had ceased.\nAffirmed in part; reversed and remanded in part.\nJudges McCULLOUGH and STEELMAN concur.\n. In Saunders, the Court concluded that the plaintiff was entitled only to a presumption of continuing partial disability because the final Form 26 was an agreement to pay partial disability for \u201cnecessary\u201d weeks. 352 N.C. at 139-40, 530 S.E.2d at 64.\n. The approval of a Form 24 request to terminate benefits is not sufficient to \u201cend\u201d the presumption of disability. King v. Yeargin Const. Co., 124 N.C. App. 396, 399-400, 476 S.E.2d 898, 901 (1996) (holding that Rule 21 presumption applied even when Commission had approved Form 24 request to terminate benefits because plaintiff had been released to return to work), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997).\n. For the same reason, defendants\u2019 argument that plaintiff is precluded from challenging the Full Commission\u2019s 8 December 2000 opinion and award \u2014 in which the Commission found plaintiff was capable of sedentary work \u2014 under the principles of res judicata and collateral estoppel is beside the point. We agree that since plaintiff did not appeal the finding that he is capable of sedentary work, that ruling is now the law of the case. See Bicket v. McLean Secs., Inc., 138 N.C. App. 353, 359, 532 S.E.2d 183, 186 (\u201c \u2018As a general rule, when an appellate court passes on questions and remands the case for further proceedings to the trial court, the questions therein actually presented and necessarily involved in determining the case, and the decision on those questions become the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal, provided the same facts and the same questions, which were determined in the previous appeal, are involved in the second appeal.\u2019 \u201d (quoting Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974)), disc. review denied, 352 N.C. 587, 544 S.E.2d 777 (2000). Nevertheless, it does not resolve the question whether plaintiff is no longer entitled to a continuing presumption of total disability.\n. Because of our resolution of this issue, we do not address plaintiffs challenges to various findings of fact made under the Commission\u2019s misapprehension of the law.\n. Plaintiff asserts various contentions regarding the Commission\u2019s opinion and award dated 8 December 2000. While plaintiff filed a notice of appeal from that decision, he did not perfect that appeal and, therefore, those contentions are not properly before us.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Brent Adams & Associates, by Robin K. Martinek, for plaintiff-appellant.", "Hedrick Gardner Kincheloe & Garofalo, L.L.R, by Jeffrey A. Doyle and Susan J. Vanderweert, for defendants-appellees." ], "corrections": "", "head_matter": "ROBERT H. ALPHIN, Employee, Plaintiff v. TART L.P. GAS COMPANY, Employer, AETNA LIFE & CASUALTY COMPANY, Carrier, Defendants\nNo. COA07-731\n(Filed 16 September 2008)\n1. Workers\u2019 Compensation\u2014 continuing disability \u2014 total or partial disability \u2014 medical evaluation\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding the issue of whether plaintiff employee was totally or partially disabled was properly before the Commission for decision because the issue was consistently before the Commission including evidence that: (1) the Commission ordered an independent medical evaluation not only to determine the extent of plaintiff\u2019s continued disability, if any, but also to assess whether plaintiff would benefit from a resumption of vocational rehabilitation; (2) plaintiff\u2019s own Form 44 application for review raised the issue as well as the relevance of the parties\u2019 Form 21 to that issue; (3) inasmuch as the Commission decides claims without formal pleadings, it is the duty of the Commission to consider every aspect of plaintiffs claim whether before a hearing officer or on appeal to the full Commission; and (4) the Commission was entitled to seek out additional evidence, such as the medical evaluation, in order to address the issues before it.\n2. Workers\u2019 Compensation\u2014 rebuttable presumption \u2014 continuing total disability\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that plaintiff\u2019s presumption of continuing total disability had ended, and the case is remanded for a determination of whether defendants have rebutted plaintiff\u2019s presumption, because: (1) the final Form 26 provided for payment of total disability benefits for necessary weeks; (2) the Court of Appeals has previously held that an agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision, or award of the Commission unappealed from or an award of the Commission affirmed on appeal; (3) the Commission and defendants identified no waiver by plaintiff of the presumption of disability arising from the Form 26; (4) the Commission made no finding that it conducted a hearing at which defendants bore the burden set out in Kennedy, 101 N.C. App. 24 (1990), and the record contained no finding by the Commission in any of its opinions and awards that suitable jobs were available for plaintiff and that he was capable of getting one taking into account both his physical and vocational limitations; (5) the Commission\u2019s finding that plaintiff reached maximum medical improvement was not the equivalent of a finding that the employee was able to earn the same wage earned prior to injury and does not satisfy defendant\u2019s burden of rebutting the presumption; (6) the fact that defendant was capable of earning wages in sedentary work does not rebut the presumption since it relates only to plaintiff\u2019s physical limitations and does not establish that suitable jobs exist and that plaintiff was capable of getting one taking into account both his physical limitations, the sedentary work limitation, and his vocational limitations; (7) an employee\u2019s release to return to work was not the equivalent of a finding that the employee was able to earn the same wage earned prior to the injury, nor did it automatically deprive an employee of the Form 21/26 presumption; and (8) while an employee cannot recover under N.C.G.S. \u00a7\u00a7 97-29 and 97-31 simultaneously, the employee has the option of choosing the most favorable recovery, and plaintiff did not elect his remedy when he accepted compensation for his rating under N.C.G.S. \u00a7 97-31.\n3. Workers\u2019 Compensation\u2014 unjustified refusal to cooperate in vocational rehabilitation \u2014 sufficiency of evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff employee did not make a proper showing that his unjustified refusal to cooperate in vocational rehabilitation had ceased because: (1) plaintiff\u2019s willingness to cooperate was based almost entirely on oral and written expressions of intent unsupported by current conduct corroborating those statements; (2) the lone step undertaken by plaintiff, seeking assistance from the State, occurred only four days before the hearing in front of the deputy commissioner; (3) in assessing the sincerity of plaintiff\u2019s representations, the Commission could appropriately consider, as it did, plaintiff\u2019s lack of recent conduct suggesting a willingness to cooperate and any recent conduct inconsistent with his expressed intent; (4) the Commission referred to plaintiff\u2019s pre-1995 conduct only in reference to plaintiff\u2019s testimony at the hearing that he believed that he had, during that time frame, fully cooperated; and. (5) the Commission made ample findings of fact explaining its reasoning and the basis for its credibility determination in refusing to reinstate plaintiff\u2019s benefits terminated under N.C.G.S. \u00a7 97-25.\nAppeal by plaintiff from opinion and award entered 22 March 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 December 2007.\nBrent Adams & Associates, by Robin K. Martinek, for plaintiff-appellant.\nHedrick Gardner Kincheloe & Garofalo, L.L.R, by Jeffrey A. Doyle and Susan J. Vanderweert, for defendants-appellees." }, "file_name": "0576-01", "first_page_order": 604, "last_page_order": 621 }