{ "id": 4174279, "name": "CATHY BERARDI, Plaintiff; Employee v. CRAVEN COUNTY SCHOOLS, Employer, KEY RISK MANAGEMENT SERVICES, Third Party Administrator; Carrier, Defendants", "name_abbreviation": "Berardi v. Craven County Schools", "decision_date": "2010-02-02", "docket_number": "No. COA09-702", "first_page": "364", "last_page": "367", "citations": [ { "type": "official", "cite": "202 N.C. App. 364" } ], "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": "625 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635079 ], "year": 2006, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0790-01" ] }, { "cite": "639 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637640 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "13", "parenthetical": "quoting Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002)" }, { "page": "13" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0009-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "176 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300854 ], "year": 2006, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0123-01" ] }, { "cite": "564 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080608 ], "year": 2002, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0197-01" ] }, { "cite": "181 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373533 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "263", "parenthetical": "quoting Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002)" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0259-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-78", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(f) and (g)" }, { "page": "(f)(2)" }, { "page": "(g)(2)" }, { "page": "(f) and (g)" } ], "opinion_index": 0 }, { "cite": "675 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 411, "char_count": 7504, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13681415402982955 }, "sha256": "0db46ff71393dbb44f7e9da28949ef74452db3822ec30032cba1a8b94147340a", "simhash": "1:894c6de051b35437", "word_count": 1158 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STEPHENS concur." ], "parties": [ "CATHY BERARDI, Plaintiff; Employee v. CRAVEN COUNTY SCHOOLS, Employer, KEY RISK MANAGEMENT SERVICES, Third Party Administrator; Carrier, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere defendants appeal from an order of the North Carolina Industrial Commission issued under the Expedited Medical Motions Procedure, such appeal is interlocutory and not properly before this Court.\nI. Factual and Procedural Background\nOn 23 October 2003, Cathy Berardi (plaintiff) suffered an injury to her lower back in the course and scope of her employment with the Craven County Schools (defendant). On 11 May 2004, Key Risk Insurance Company, defendant\u2019s carrier, executed an IC Form 60 admitting plaintiff\u2019s right to compensation pursuant to N.C. Gen Stat. \u00a7 9748(b). Plaintiff was paid temporary total disability benefits.\nOn 16 September 2005, defendants filed an application with the Industrial Commission to terminate temporary total disability benefits. This application was denied by the Industrial Commission on 4 April 2008. This Court affirmed the decision of the Industrial Commission by an unpublished opinion, Berardi v. Craven County School District,-N.C. App.-, 675 S.E.2d 154 (2009) (unpublished).\nPlaintiffs authorized treating physician is Dr. Kirk Harum (Dr. Harum), a pain management specialist. Dr. Harum treated plaintiff for pain with medication, facet block injections and radiofrequency ablations. Dr. Harum prescribed additional radiofrequency ablation procedures, which defendants refused to authorize. On 9 October 2008, plaintiff filed an IC Form 33 requesting that defendants be compelled to authorize the treatments under the expedited procedures for handling medical treatment requests authorized under N.C. Gen. Stat. \u00a7 97-78(f) and (g). On 20 February 2009, the Industrial Commission filed an order approving the radiofrequency ablation procedure and directing defendants to authorize the treatment within ten days.\nDefendants appeal.\nII. Interlocutory Order\nWe must first consider plaintiffs motion to dismiss defendants\u2019 appeal as being interlocutory. We hold that the order of the Industrial Commission is interlocutory, and dismiss defendants\u2019 appeal.\nA. Anneals from the Industrial Commission\nAn appeal from an Opinion and Award of the Industrial Commission is subject to the \u201csame terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.\u201d N.C. Gen. Stat. \u00a7 97-86 (2007). \u201c \u2018Parties have a right to appeal any final judgment of a superior court. Thus, an appeal of right arises only from a final order or decision of the Industrial Commission.\u2019 \u201d Cash v. Lincare Holdings, 181 N.C. App. 259, 263, 639 S.E.2d 9, 13 (2007) (quoting Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002)). A decision of the Industrial Commission that determines one but not all of the issues in a case is interlocutory, as is a decision which on its face contemplates further proceedings or \u201cdoes not fully dispose of the pending stage of the litigation.\u201d Id. (quoting Perry v. N.C. Dep\u2019t. of Corr., 176 N.C. App. 123, 129, 625 S.E.2d 790, 794 (2006)). However, immediate review of an interlocutory decision is proper where it affects a substantial right. Id. at 263, 639 S.E.2d at 13.\nB. Provisions of G.S. 97-78ff)&fg) and Expedited Motion Procedure\nPrior to the adoption of the Expedited Medical Motion Procedure by the Industrial Commission on 22 July 2008, a dispute over medical treatment could be resolved through a full evidentiary hearing under N.C. Gen. Stat. \u00a7 97-83 or by filing a Motion to Compel Medical Treatment pursuant to Rule 609(a)(1) of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission. Either of these routes involves a lengthy and protracted process, during which time the employee could be deprived of necessary medical treatment. This process could be further delayed by appeal to the Court of Appeals as a result of N.C. Gen. Stat. \u00a7 97-86, which provides for supersedeas as to the decision of the Commission, except as provided in N.C. Gen. Stat. \u00a7 97-86.1.\nTo deal with this problem, the General Assembly enacted 2007 N.C. Sess. Laws ch. 323, \u00a7 13.4A.(a), which added subsections (f) and (g) to the provisions of N.C. Gen. Stat. \u00a7 97-78. These amendments required the Industrial Commission to prepare and implement a strategic plan for \u201cexpeditiously resolving requests for, or disputes involving, medical compensation under G.S. 97-25, including selection of a physician, change of physician, the specific treatment involved, and the provider of such treatment.\u201d N.C. Gen. Stat. \u00a7 97-78(f)(2). Subsection (g) requires the Industrial Commission to include certain data in its annual report concerning medical compensation disputes, including the number of disputes not resolved \u201cwithin 45 days of the filing of the motion.\u201d N.C. Gen. Stat. \u00a7 97-78(g)(2).\nIn response to this directive from the General Assembly, the Industrial Commission adopted the Expedited Medical Motions Procedure. This provides for an initial administrative review of the motion, with an appeal to a Deputy Commissioner, and a further appeal to the Full Commission. Time periods for conducting discovery, filing briefs, and the filing of orders are abbreviated. The Medical Motions Procedure contains an estimate of 30 days to complete an appeal before the Deputy Commissioner and 30 to 45 days to complete an appeal before the Full Commission.\nC. Application\nThe ruling of the Industrial Commission under the Medical Motions Procedure was not a final ruling that determined all issues in the case and was therefore interlocutory. Cash, 181 N.C. App. at 263, 639 S.E.2d at 13. Defendants seek a determination by this Court that the medical conditions of which plaintiff complains were not caused by a compensable injury, and therefore, that the radiofrequency ablation treatment should not have been authorized by the Industrial Commission. This issue has yet to be ruled upon by the Industrial Commission. Further, this Court has already affirmed the ruling of the Industrial Commission that denied defendants\u2019 motion to terminate plaintiff\u2019s temporary total disability benefits.\nWe hold that defendants\u2019 appeal does not affect a substantial right. The enactment of N.C. Gen. Stat. \u00a7 97-78(f) and (g) by the General Assembly mandates that medical treatment issues be handled expeditiously. In order to comply with these statutory amendments, rulings must necessarily be expedited, are interlocutory, and entered without prejudice to the subsequent resolution of the contested issues in the case.\nDefendants\u2019 appeal is dismissed.\nAPPEAL DISMISSED.\nJudges McGEE and STEPHENS concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Lennon & Camak, PLLC, by Michael W. Bertics, for the plaintiff-appellee.", "Prather Law Firm, by J.D. Prather, for defendants-appellants." ], "corrections": "", "head_matter": "CATHY BERARDI, Plaintiff; Employee v. CRAVEN COUNTY SCHOOLS, Employer, KEY RISK MANAGEMENT SERVICES, Third Party Administrator; Carrier, Defendants\nNo. COA09-702\n(Filed 2 February 2010)\nAppeal and Error\u2014 interlocutory orders \u2014 workers\u2019 compensation \u2014 expedited medical treatment\nAn appeal by defendants in a workers\u2019 compensation case from an order for expedited medical treatment was from an interlocutory order and did not affect a substantial right. Rulings in compliance with N.C.G.S. \u00a7 97-78(f) and (g) must necessarily be expedited, are interlocutory, and are entered without prejudice to the subsequent resolution of the contested issues in the case.\nAppeal by defendants from order filed 20 February 2009 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 18 November 2009.\nLennon & Camak, PLLC, by Michael W. Bertics, for the plaintiff-appellee.\nPrather Law Firm, by J.D. Prather, for defendants-appellants." }, "file_name": "0364-01", "first_page_order": 392, "last_page_order": 395 }